David Lee Hewitt V. State of Utah : Brief of Appellee

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1993 David Lee Hewitt .v State of Utah : Brief of Appellee Utah Court of Appeals

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Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Jan Graham; Attorney General; James H. Beadles; Assistant Attorney General; Attorney for Appellee. David Lee Hewitt; Utah State Prison; Appearing Pro Se.

Recommended Citation Brief of Appellee, Hewitt .v Utah, No. 930035 (Utah Court of Appeals, 1993). https://digitalcommons.law.byu.edu/byu_ca1/3924

This Brief of Appellee is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. UTAH COURT OF APPEALS UTAH DOCUMENT KFU 50 .A10 IN THE tJTAH C0URT 0F DOCKET NO APPEALS

DAVID LEE HEWITT, : Petitioner and Appellant, s: Case No, 930035-CA

V. J : Priority No, 3 STATE OF UTAH, s Respondent and Appellee. ;

BRIEF OF APPELLEE

APPEAL FROM DENIAL OF PETITION FOR EXTRAORDINARY WRIT IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH, THE HONORABLE MICHAEL J. MURPHY, PRESIDING

DAVID LEE HEWITT JAN GRAHAM (1231) PRO SE Utah Attorney General P.O. Box 250 JAMES H. BEADLES .(5250) Draper, Utah 84020 Assistant Attorney General 330 South 300 East Salt Lake City, Utah 84111-2525 Telephone: (801) 575-1600 APPEARING PRO SE ATTORNEY FOR APPELLEE IN THE UTAH COURT OF APPEALS

DAVID LEE HEWITT, Petitioner and Appellant, i Case No. 930035-CA

V. J * Priority No. 3 STATE OF UTAH, j Respondent and Appellee, :

BRIEF OF APPELLEE

APPEAL FROM DENIAL OF PETITION FOR EXTRAORDINARY WRIT IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH, THE HONORABLE MICHAEL J. MURPHY, PRESIDING

TABLE "•• MITUU ' "~ •

JURISDICTION AND NA-] .-~ C-J <'f< >CEEDINGS

IS! PRESENTEr

STANDARD U1 Ax « . ^EVIE 2 CONSTITUTIONAL PROVIb; . ... I STATEMEN I STATEME'.. A ir 4 SUMMARY OF ARGUMENT \ ARGUMENT 1 POINT I THE TRIAL COURT CORRECTLY DENIED THE PETITION THE GROUNDS OF WAIVER AND FAILURE TO PURSUE A DIRECT APPEAL ...... 7 POINT II BECAUSE THE DISTRICT COURT PROPERLY DISMISSED PETITION DUE TO WAIVER AND FAILURE TO PURSUE A DIRECT APPEAL, THIS COURT DOES NOT NEED TO REACH PETITIONER'S CLAIMS ABOUT THE HABEAS CORPUS STATUTE OF LIMITATIONS 9 I'OINT I I I THE CONSTITUTIONAL PROHIBITION ON THE SUSPENSION OF HABEAS CORPUS APPLIES ONLY TO HABEAS CORPUS AS IT WAS UNDERSTOOD BY THE FRAMERS OF THE CONSTITUTION 10 POINT IV THE OTHER POINTS PETITIONER RAISES IN HIS BRIEF WERE NOT RAISED IN THE DISTRICT COURT AND THEREFORE NOT PRESERVED FOR APPEAL .... 14 15

ADDENDA

CONS1 • S ADrr \ JUDGMENT, SENTENCE ANb ,'*'.*•. I'E • N ADD A B L PETITION FOR WRIT OF HABEAS CORPUS ADDENDUM C AMENDED PETITION FOR WRIT OF HABEAS CORPUS ADDENDUM D MOTION TO DISMISS ADDENDUM E RESPONSE TO RESPONDENT'S MOTION TO DISMISS ADDENDUM F SUMMARY DECISION AND ORDER ADDENDUM G UTAH CASES ON COMMON LAW HABEAS CORPUS ADDENDUM H People v. Robinson. 833 P.2d 832 (Col. App. 1992) and Potts v. State. 833, S.W.2d 60 (Tenn. 1992) ADDENDUM I

ii TABLE OF AUTHORITIES

CASES CITED

Areson v. Pincock. 62 Utah 527, 220 P. 503 (1923) ... 10 Brown v. Turner. 21 Utah 2d 96, 440 P.2d 968 (1968) . . 8 Bundv v. DeLand. 763 P.2d 803 (Utah 1988) 2 In re Clark. 28 Utah 268, 78 P. 475 (1904) 11 Codianna v. Morris. 660 P.2d 1101 (Utah 1983) .... 8 Drummond v. Union Pacific R.R.. Ill Utah 289, 177 P.2d 908 (1947) . 15 Hatch v. Deland. 790 P.2d 49 (Utah 1990) 11 Ex Parte Hays, 15 Utah 77, 47 P. 612 (1897) . . . . 11, 13 Hurst v. Cook, 777 P.2d 1029 (Utah 1989) 11 In re Mauahan, 6 Utah 167, 21 P. 1088 (1889) .... 11 People v. Robinson. 833 P.2d 832 (Colo. App. 1992), . . . .13 Potts v. State. 833 S.W.2d 60 (Tenn. 1992) 12, 13 Smith v. Cook, 803 P.2d 788 (Utah 1990) 9 Standard Federal Savings and Loan Associate v. Kirkbride, 821 P.2d 1136 (Utah 1991) 15 State ex rel. Newsom v. Henderson. 221 Tenn. 24, 424 S.W.2d 186 (1968) 13 State v. Anderson. 701 P.2d 1099 (Utah 1985) .... 9 State v. Archambeau, 820 P.2d 920 (Utah App. 1991) ... 15 State v. Johnson. 635 P.2d 36 (Utah 1981) 12 Stewart v. State, 830 P.2d 306 (Utah App. 1992) ... 2 Stillev v. Tinslev. 153 Colo. 66, 385 P.2d 677 (1963) . . 13 iii Swain v. Presslev. 430 U.S. 372 ...... 14 Wickham v. Fisher, 629 P.2d 896 (Utah 1981) . . . . 11 Winnovich v. Emery, 33 Utah 345, 93 P. 988 (1908) . . .10, 13 Ziecler v. Milliken, 583 P.2d 1175 (Utah 1978) .... 11

CONSTITUTIONAL PROVISION, STATUTES AND RULES

Utah Code Ann. § 78-12-31.1 (1992) 1, 2 Utah Code Ann. § 78-2a-3 (2)(g) (Supp. 1992) .... 1 Utah Const, art. V 2, 12 Utah Const, art. I, §5 2 Utah Const, art. I, § 11 6 Utah Const, art. I, § 5 9 Utah R. Civ. P. 65B (1992) 2

MISCELLANEOUS

Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 170 (1970) 14 Oaks, Legal History in the High Court — Habeas Corpus. 64 Mich. L. Rev. 451, 468 (1966) 11 Story, Commentaries on the Constitution of the United States, at 212 (Little, Brown & Company 1891) ... 11

iv IN THE UTAH COURT OF APPEALS

DAVID LEE HEWITT, i Petitioner and Appellant, ! Case No. 930035-CA

V. J : Priority No. 3 STATE OF UTAH, i Respondent and Appellee. ;

BRIEF OF APPELLEE JURISDICTION AND NATURE OF PROCEEDINGS This is an appeal from the district court's denial of a petition for extraordinary writ brought under Rule 65B, Utah Rules of Civil Procedure. This appeal is taken from a decision of the district court involving a challenge to petitioner's sentence for a second degree felony conviction; therefore, original appellate jurisdiction lies with the Utah Court of Appeals under Utah Code Ann. § 78-2a-3 (2)(g) (Supp. 1992). ISSUES PRESENTED UPON APPEAL 1. Did the district court correctly conclude that petitioner waived his complaints when he failed to raise them at the sentencing hearing and on direct appeal? 2. Does Utah Code Ann. § 78-12-31.1 (1992), the habeas corpus statute of limitations, unconstitutionally "suspend" the privilege of the writ of habeas corpus and, therefore, violate article I, section 5 of the Utah Constitution.

1 STANDARD OF APPELLATE REVIEW On appeal from denial of a petition for post-conviction relief, the appellate court "'survey[s] the record in the light most favorable to the findings and judgment; and [it] will not reverse if there is a reasonable basis therein to support the trial court's refusal to be convinced that the writ should be granted,'" Bundv v. DeLand, 763 P. 2d 803, 805 (Utah 1988) (quoting Velasquez v. Pratt, 21 Utah 2d 229, 232, 443 P.2d 1020, 1022 (1967)). When the denial includes rulings on questions of law, the-trial court's legal conclusions are reviewed de novo. Stewart v. State, 830 P. 2d 306, 308-09 (Utah App. 1992). A trial court's findings of fact will be disturbed only if clearly erroneous. Id. CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES The following provisions are included in Addendum A to this brief. Other relevant pleadings and documents, including the summary decision and order of the trial court, are also included in the Addenda. Utah Const, art. I, § 5. Utah Const, art. V. Utah Code Ann. § 78-12-31.1 Utah R. Civ. P. 65B (1992). STATEMENT OF THE CASE This case arises from petitioner's sentencing on February 4, 1991 before Third District Court Judge Michael Murphy for the crime of retail theft, a second degree felony. Judge Murphy sentenced Petitioner to a term of imprisonment for not less than one nor more

2 than fifteen years. (Judgment, Sentence (Commitment), attached as Addendum B.) On February 19, 1992, more than one year after receiving his sentence, petitioner filed a petition for extraordinary relief with the Third District Court. (R. at 2-5; Attached as Addendum C, Petition for Writ of Habeas Corpus and Post Conviction Relief, Case No. 920900909, Third District Court.) In his petition, petitioner claimed that the sentencing court had received and acted upon erroneous and misleading information in the pre-sentence investigation report (PSI). (R. at 3; Addendum C.) Further, petitioner also alleged that the Adult Probation & Parole (AP&P) agent who had written the report was prejudiced and biased and that the court had failed to ask petitioner during sentencing if he and his counsel had reviewed and discussed the PSI. Petitioner later filed an amended petition, which did not substantively change the nature of his allegations. (R. at 58-61; Attached as Addendum D, Amended Petition for Writ of Habeas Corpus and Post Conviction Relief, Case No. 920900909, Third District Court, filed June 17, 1992.) The State was ordered to respond to the petition (R. at 18-19) and filed a motion to dismiss and memorandum in support. The motion to dismiss was based upon the argument that petitioner could and should have raised his complaints in regular appellate review; that the statute of limitations barred the petition; and that the petition did not comply with the procedural requirements of Rule 65B. (R. at 21-29; Attached as Addendum E, Motion to Dismiss,

3 Memorandum in Support of Motion to Dismiss, Case No, 920900909, Third District Court, filed March 13, 1992.) Petitioner responded to the motion on March 30, 1992. (R. at 31-35; Attached as Addendum F, Response to Respondent's Motion to Dismiss and Memorandum in Support, Case No. 920900909.) After requesting the State to order a copy of the transcript of petitioner's sentencing hearing (R. at 56), the district court entered a Summary Decision and Order, which dismissed the petition on the grounds of waiver and statute of limitations. (R. at 81; Attached as Addendum G, Summary Decision and Order, Third District Court, Case No. 920900909, filed December 15, 1992.) Petitioner filed his notice of appeal on January 14, 1993. STATEMENT OF FACTS The (acts pertinent to this case are set out in the Statement of the Case. SUMMARY OF THE ARGUMENT In his petition for post-conviction relief, petitioner claimed that the sentencing court committed various procedural errors during his sentencing, primarily that it relied on biased and misleading information in the PSI. Petitioner admits that he never pursued his claims on direct appeal, nor did he state his concerns to the sentencing judge during the sentencing hearing. (R. at 3; Addendum C.) Extraordinary relief pursuant to Rule 65B is not a substitute for regular appellate review. Because petitioner's claims could and should have been raised on direct appeal, the court's judgment

4 is final and not subject to collateral attack by way of extraordinary relief. Therefore, the court's dismissal on the grounds of waiver was proper and should be affirmed. Petitioner does not provide any legal analysis challenging Judge Murphy's finding of waiver; therefore under previous decisions of the Utah appellate courts, any claims that he may have had on that issue should be considered abandoned. Thus, this Court should decide Petitioner's case solely on the issue of waiver and not reach petitioner's constitutional arguments regarding the habeas corpus statute of limitations. Nevertheless, although the State respectfully suggests that this Court can and should avoid the constitutional issues raised by Petitioner, the State submits that the statute of limitations as applied in this case does not violate the suspension clause of article I, section 5. Article I, section 5 of the Utah Constitution prohibits suspension of the privilege of the writ of habeas corpus unless required by the public safety, rebellion, or invasion. In determining the applicability of the suspension clause to Petitioner's case, it is necessary to look at the writ of habeas corpus as it existed when the Utah Constitution was drafted and ratified. At common law and at that time in the Utah courts, the writ of habeas corpus was available only to challenge a court's jurisdiction, not to collaterally attack a conviction. Utah appellate courts have greatly expanded the writ of habeas corpus and have by rule created a post-conviction relief procedure. However, as a limitation on legislative power, the suspension

5 clause can only properly be read as a prohibition on the legislative power to "suspend" the common law writ of habeas corpus. The framers of the constitution could not have known that in the future the appellate courts would transform the writ of habeas corpus into a remedy for constitutional violations• Therefore, the framers' anti-suspension language cannot fairly be applied to that transformed writ. Petitioner's petition also is not one that would have been granted habeas corpus relief at common law. It neither challenges the sentencing court's jurisdiction nor alleges that the sentence imposed was unlawful. Therefore, this case does not present a situation where the State is attempting to limit common law habeas corpus via Section 78-12-31.1.1 Petitioner's claims are cognizable only through the post conviction relief procedure of Rule 65B, the codification of the judicial expansion of habeas corpus and the common law writ of error and error coram nobis. Article I, section 5 simply does not apply to that modern evolution of habeas corpus and, therefore, petitioner's suspension argument should be rejected. Additionally, petitioner's other claims in his brief before this Court, which include the reasonableness of the three month limitations period, a due process challenge, and the applicability of the "open courts" provision of the state constitution, Utah

1 Whether the state could appropriately enact any limitation period on the common law writ of habeas corpus is not presented in this case because Hewitt's petition does not raise claims that were cognizable in common law habeas proceedings. 6 Const, art. I, § 11, were not raised in the trial court and therefore should not now be reviewed on appeal. ARGUMENT POINT I THE TRIAL COURT CORRECTLY DENIED THE PETITION ON THE GROUNDS OF WAIVER AND FAILURE TO PURSUE A DIRECT APPEAL. Petitioner did not challenge his conviction, but the proceeding before the sentencing court that resulted in his 1 to 15 year sentence. In his amended petition, petitioner claimed that the sentencing judge erred by relying on misleading and erroneous information, accepting a presentence investigation report (PSI) from an allegedly biased agent, and failing to ask petitioner if he had seen the PSI and discussed it with his counsel. (R. at 58-60; Amended Petition, Addendum D.) The district court dismissed the petition on two grounds: waiver and statute of limitations. From its review of the transcript of the sentencing proceeding, the court found that petitioner either knew or should have known of the issues raised in his post-conviction petition at the time of sentencing and that he could and should have raised those issues at the hearing and on a direct appeal. The district court ruled that petitioner waived his complaints by not raising them through regular procedures. "The other allegations [of the petition] share at least three characteristics: (1) they were not raised at the sentencing hearing; (2) had they been raised they could have and would have been addressed; and (3) they were not the subject of a direct appeal." (R. at 82; Summary

7 Decision and Order, Case No, 92090090, Third District Court, filed

December 15f 1992 (Order, Addendum G.) As petitioner admitted in his amended petition, as well as in his original petition, he did not pursue a direct appeal from either his conviction or his sentence. (R. at 59; Amended Petition at 2, Addendum D.) The district court correctly dismissed the petition for those reasons. In Brown v. Turner, 21 Utah 2d 96, 440 P.2d 968 (1968), the Utah Supreme Court recognized that a petition for post-conviction relief was an "extraordinary" remedy and not a substitute for regular appellate review. See also Codianna v. Morris/ 660 P.2d 1101 (Utah 1983). Contrary to the plain command of the lawf petitioner has attempted to use Rule 65B(b) to correct his failure to raise his complaints in the proper manner. Although a petitioner's failure to raise claims through regular appellate review is excused by showing that unusual circumstances prevented the use of a regular appeal, Codianna, 660 P. 2d at 1105, petitioner did not show such unusual circumstances in his petition. His petition stated that he did not appeal the sentence because he "was never informed by counsel that the Court had errored [sic] during sentencing." (R. at 3.) This is likely because there was, in fact, no error in sentencing. The Sixth Amendment does not require defense counsel to file a meaningless or frivolous appeal or to tell a client that there are errors when there are none.

8 POINT II BECAUSE THE DISTRICT COURT PROPERLY DISMISSED THE PETITION DUE TO WAIVER AND FAILURE TO PURSUE A DIRECT APPEAL, THIS COURT DOES NOT NEED TO REACH PETITIONER'S CLAIMS ABOUT THE HABEAS CORPUS STATUTE OF LIMITATIONS. Petitioner's brief is primarily devoted to his claim that section 78-12-31.1 (1992) suspends the privilege of the writ of habeas corpus.2 Suspension of the privilege is prohibited by the Utah Constitution. Utah Const, art. I, § 5. It does not appear that Utah's appellate courts have ever directly analyzed this provision of the constitution, even though the general topic of habeas corpus has been extensively litigated. Only in a concurring opinion of Smith v. Cook, 803 P.2d 788, 796 (Utah 1990) (Zimmerman, J., concurring, joined in by Stewart, J.), have two justices of the Utah Supreme Court expressed their opinion that the legislature could not validly impose a limitation on habeas corpus. In State v. Anderson, 701 P.2d 1099, 1103 (Utah 1985), the court stated that it is a fundamental rule that courts should avoid addressing constitutional issues whenever possible. This fundamental rule seems especially pertinent when the constitutional issue is one of first impression. In this case, the Court can

2 Petitioner also raises several other issues in his brief, including an argument relating to the open courts provision of the Utah Constitution, a claim that section 78-12-31.1 violates due process, an allegation that imprisonment should toll the statute of limitations, and a challenge to the court's procedures in dismissing the petition. Also, petitioner seems to argue that the three month limitation period is unreasonable. As discussed in Point IV of this brief, these issues were not raised at the district court level and should not be reviewed on appeal. 9 sustain the district court's order solely on the basis of waiver. With such a procedural posture, any discussion regarding the constitutionality of section 78-12-31.1 would be an advisory opinion only. Thus, this Court should not reach the statute's constitutionality. However, in order to preserve its argument should this Court decide to reach the constitutional question, the State will in Point III discuss the merits. POINT III THE CONSTITUTIONAL PROHIBITION ON THE SUSPENSION OF HABEAS CORPUS APPLIES ONLY TO HABEAS CORPUS AS IT WAS UNDERSTOOD BY THE FRAMERS OF THE CONSTITUTION. Article I, section 5 of the Utah Constitution is a limitation on legislative power. In enacting that provision, the people of the State determined that habeas corpus was such an important facet of personal liberty that it could be suspended only in certain circumstances. However, when that provision was written and adopted, "habeas corpus" had a specific and very limited meaning. Therefore, the limitation imposed by the suspension clause was itself limited. As understood in the common law and by the Utah Supreme Court at the time of the writing of the Utah Constitution, the only question that a court reviewed on a petition for a writ of habeas corpus was whether the petitioner was being restrained of his liberty by authority of a governmental entity, usually a court, which had jurisdiction. Areson v. Pincock, 62 Utah 527, 530, 220 P. 503 (1923); Winnovich v. Emery, 33 Utah 345, 93 P. 988, 993-994 10 (1908); In re Clark, 28 Utah 268, 78 P. 475 (1904); Ex Parte Hays, 15 Utah 77, 47 P. 612, 613-614 (1897); In re Maughan, 6 Utah 167, 21 P. 1088, 1089 (1889); (these cases are attached as Addendum H); see also. Oaks, Legal History in the High Court — Habeas Corpus, 64 Mich. L. Rev. 451, 468 (1966); Story, Commentaries on the Constitution of the United States, at 212 (Little, Brown & Company 1891). In a series of cases over the last approximately fifteen years, however, the Utah Supreme Court and this Court have greatly expanded the scope of habeas corpus3. While discussing the modern transformation of habeas corpus, the Supreme Court recognized that the original purposes of the writ were limited to challenging jurisdiction. Hurst v. Cook, 777 P.2d 1029, 1034 (Utah 1989). It is this limited writ to which article I, section 5 refers, not to the greatly expanded constitutional remedy contained, in Rule 65B. As currently interpreted, "habeas corpus" or more properly Rule 65B(b), which is directly at issue in this case, is an amalgamation of different common-law writs, including habeas corpus, the writ of

3In Ziegler v. Milliken, 583 P.2d 1175 (Utah 1978), the Utah Supreme Court allowed the use of habeas corpus to show a violation of "basic rights." In Wickham v. Fisher, 629 P.2d 896 (Utah 1981), the court used a habeas corpus petition to examine conditions of confinement. This Court Hatch v. Deland, 790 P.2d 49 (Utah 1990), applied habeas corpus to review decisions of the Board of Pardons stating that habeas review was available to remedy "violations of substantial constitutional rights." The supreme court recognized the transformation of the common law writ of habeas corpus in Hurst v. Cook, 777 P.2d 1029, 1033- 1034 (Utah 1989), a case in which the court stated that the writ had "absorbed the post-conviction relief remedy" then contained in Rule 65B(i), Utah Rules of Civil Procedure, and that the writ was "one of the most important of all judicial tools for the protection of individual liberty."

11 error, and the writ of error coram nobis. See State v. Johnson, 635 P. 2d 36, 38 (Utah 1981) ("The post-conviction hearing procedure is a successor to the common-law writ of error coram nobis."). Therefore, the suspension clause of article I, section 5, which dealt only with habeas corpus, should not be applied to Rule 65B, which creates remedies that are far more powerful in scope and availability than the writ to which the delegates to the Utah Constitutional Convention could have been referring. Indeed, because the suspension clause is a limitation on legislative power, extension of the clause to remedies other than common law habeas corpus, would be a further limitation and unconstitutional encroachment on legislative power by the judicial branch of government. Such an extra-constitutional encroachment is neither envisioned nor allowed by the constitution itself. Utah Const. Art. V. Two other state courts have addressed similar challenges that a statute of limitation on the filing of a petition for post conviction relief unlawfully "suspended" the writ of habeas corpus/ In Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (attached as Addendum I), the Tennessee Supreme Court held that the suspension clause contained in article I, section 15 of the state constitution was not abridged by a limitation on filing petitions for post-conviction relief.

*The State has not found any other cases in which this issue was precisely addressed. 12 The court ruled that the writ of habeas corpus could "issue only in the case of a void judgment or to free a prisoner held in custody after his term of imprisonment has expired," Potts, 833 S.W.2d at 62. This statement reflects the meaning of common law habeas corpus in the Tennessee courts and as codified by that state's law. See State ex rel. Newsom v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1968). The Colorado Court of Appeals reached the same conclusion and gave a more lengthy analysis to the constitutional claim. As stated in that opinion: The only claims cognizable in a constitutionally guaranteed habeas corpus proceeding are these: (1) the sentence was beyond jurisdictional limits, or (2) the conviction was invalid because the court lacked jurisdiction over the subject matter or the defendant. . . . Instead, the statute [enacting a limitation period on the filing of petitions for post-conviction relief] limits only those collateral attacks previously made available by legislative and judicial expansion of the scope of postconviction relief beyond that which is constitutionally mandated. People v. Robinson, 833 P.2d 832, 836 (Colo. App. 1992), cert. granted, August 17, 1992. (Attached as Addendum H.) The Robinson court's statement on the applicability of habeas corpus reflected the Colorado Supreme Court's view of the scope of common law habeas corpus. See Stillev v. Tinslev, 153 Colo. 66, 385 P.2d 677 (1963). This view similar to that held by Utah courts prior to the modern expansion of the writ. See Ex Parte Hays, 15 Utah 77, 47 P. 612, 613-614 (1897); Winnovich v. Emery, 33 Utah 345, 93 P. 988, 993-994 (1908).

13 Petitioner's claim that the suspension clause prohibits the application of section 78-12-31.1 to post-conviction relief proceedings is incorrect. The post-conviction relief procedure set forth in Rule 65B(b) is not the writ of habeas corpus that is guaranteed by the constitution. Therefore, the suspension clause applies only to habeas corpus proceedings as they were understood when the constitution was written. In a law review article discussing collateral attacks on criminal convictions, a former judge for the Second Circuit Court of Appeals said: "It can scarcely be doubted that the writ protected by the suspension clause is the writ as known to the framers, not as Congress may have chosen to expand it or, more pertinently, as the Supreme Court has interpreted what Congress did." Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 170 (1970); See also Swain v. Presslev, 430 U.S. 372, 384-386 (Burger, C.J., concurring) ("The sweep of the suspension clause must be measured by reference to the intention of the Framers and their understanding of what the writ of habeas corpus meant at the time the Constitution was drafted."). POINT IV THE OTHER POINTS PETITIONER RAISES IN HIS BRIEF WERE NOT RAISED IN THE DISTRICT COURT AND THEREFORE NOT PRESERVED FOR APPEAL. As previously mentioned, petitioner raises numerous issues other than the suspension argument in his brief to this Court. However, those issues were not raised to the district court. The

14 only issues petitioner discussed in his response to the State's motion to dismiss in the district court were (1) the suspension clause; (2) the claim that he could and should have taken the issues on direct appeal; and (3) that he procedurally did not comply with Rule 65B. (R. at 45; Attached as Addendum H, Memorandum in Support of Petitioner [sic] Requests to Deny Motion to Dismiss, Case No. 920900909, Third District Court, filed March 30, 1992.) Of the issues petitioner raised before the district court, he has properly preserved and argued only the suspension clause argument. Other issues raised in petitioner's brief — the applicability of article I, section 11, a due process claim, tolling, and the reasonableness of the three month period — were not raised below. Therefore, under the longstanding rule of this Court, those claims should not now be reviewed on appeal. Standard Federal Savings and Loan Assoc, v. Kirkbride, 821 P.2d 1136, 1138 (Utah 1991); State v. Archambeau, 820 P.2d 920 (Utah App. 1991); Drummond v. Union Pac. R.R. , 111 Utah 289, 177 P.2d 908, 909 (1947). CONCLUSION The State respectfully requests that this Court affirm the district court's dismissal of the petition. The district court correctly concluded that petitioner waived his cTaims when he failed to raise them either at the sentencing hearing or in a direct appeal. Should this Court determine that petitioner's claims were not waived by failing to appeal, then the Court should

15 reject Petitioner's claim that the suspension clause of article I, section 5 prohibits the statute of limitations here at issue. Additionally, because petitioner's other claims are not properly before this Court either because they were not raised in the district court or they were abandoned or waived on appeal, the other issues contained in petitioner's brief should not be considered. RESPECTFULLY SUBMITTED THIS iflL day of May 1993. JAN GRAHAM Utah Attorney General

James H. Beadles Assistant Attorney General

16 CERTIFICATE OF MAILING I certify that on the P ^ day of May 1993, I caused to be mailed by U.S. Mail, postage prepaid, a true and correct copy of the foregoing BRIEF OF RESPONDENT to: David Lee Hewitt P.O. Box 250 Utah State Prison Draper, Utah 84020 yUiJJvi

17 ADDENDUM A Sec. 5. [Habeas corpus.] The privilege of the writ of habeas corpus shall not be suspended, unless, in case of rebellion or invasion, the public safety requires it. (c) 1953-1993 By The Michie Company 78-12-31.1- Habeas corpus - Three months. Within three months: For relief pursuant to a writ of habeas corpus. This limitation shall apply not only as to grounds known to petitioner but also to grounds which in the exercise of reasonable diligence should have been known by petitioner or counsel for petitioner. (c) 1953-1993 By The Michie Company Rule 65B. Extraordinary relief. (a) Availability of remedy. Where no other plain, speedy and adequate remedy is available, a person may petition the court for extraordinary relief on any of the grounds set forth in paragraph (b) (involving wrongful imprisonment), paragraph (c) (involving other types of wrongful restraint on personal liberty), paragraph (d) (involving the wrongful use of public or corporate authority) or paragraph (e) (involving the wrongful use of judicial authority and the failure to exercise such authority). There shall be no special form of writ. The procedures in this rule shall govern proceedings on all petitions for extraordinary relief. To the extent that this rule does not provide special procedures, proceedings on petitions for extraordinary relief shall be governed by the procedures set forth elsewhere in these rules.

(b) Wrongful imprisonment. (1) Scope. Any person committed by a court to imprisonment in a state prison, other correctional facility or county jail who asserts that the commitment resulted from a substantial denial of rights may petition the court for relief under this paragraph. This paragraph (b) shall govern proceedings based on claims relating to original commitments and commitments for violation of probation or parole. This paragraph (b) shall not govern proceedings based on claims relating to the terms or conditions of confinement.

(2) Commencement. Except for challenges to parole violation proceedings, the proceeding shall be commenced by filing a petition, together with a copy thereof, with the clerk of the district court in the county in which the commitment leading to confinement was issued. The court may order a change of venue on motion of a party for the convenience of the parties or witnesses. Petitions challenging parole violation proceedings shall be commenced by filing a petition together with a copy thereof, with the clerk of the district court in the county in which the petitioner is located.

(3) Contents of the petition. The petition shall set forth all claims that the petitioner has in relation to the legality of the commitment. Additional claims relating to the legality of the commitment may not be raised in subsequent proceedings except for good cause shown. The petition shall state;

(A) the place where the petitioner is restrained;

(B) the name of the court by which the petitioner was convicted and sentenced and the dates of proceedings in which the conviction was entered, together with the court's case number for those proceedings, if known by the petitioner; (C) in plain and concise terms, all of the facts on the basis of which the petitioner claims a substantial violation of rights as the result of the commitment; (D) whether or not the judgment of conviction or the commitment for violation of probation or parole has been reviewed on appeal, and, if so, the number and caption or title of the appellate proceeding and the results of the review; (E) whether the legality of the commitment has already been adjudicated in any prior post-conviction or other civil proceeding, and if so the reasons for the denial of relief in the prior proceeding.

(4) Attachments to the petition. The petitioner shall attach to the petition affidavits, copies of records or other evidence available to the petitioner in support of the allegations. The petitioner shall also attach to the petition a copy of the pleadings filed by the petitioner in any prior post-conviction or other civil proceeding that adjudicated the legality of the commitment, and a copy of all orders and memoranda of the court. If copies of pertinent pleadings, orders, and memoranda are not attached, the petition shall state why they are not attached.

(5) Memorandum of authorities. The petitioner shall not set forth argument or citations or discuss authorities in the petition, but these may be set out in a separate memorandum, two copies of which shall be filed with the petition.

(6) Assignment by the presiding judge. On the filing of the petition, the clerk shall promptly deliver it to the assigned judge of the court in which it is filed. Except for challenges to parole violation proceedings, the presiding judge shall if possible assign the proceeding to the judge who issued the commitment.

(7) Dismissal of frivolous claims. On review of the petition, if it is apparent to the court that the issues presented in the petition have already been adjudicated in a prior proceeding, or if for any other reason any claim in the petition shall appear frivolous on its face, the court shall forthwith issue an order dismissing the claim, stating that the claim is frivolous on its face. The order shall be sent by mail to the petitioner. Proceedings on the claim shall terminate with the entry of the order of dismissal. The order of dismissal need not recite findings of fact or conclusions of law.

(8) Service of petitions. If, on review of the petition, the court concludes that all or part of the petition is not frivolous on its face, the court shall designate the portions of the petition that are not frivolous and direct the clerk to serve a copy of the petition and a copy of any memorandum by mail upon the attorney general and the county attorney. 2 (9) Responsive pleading. Within twenty days (plus time allowed under these rules for service by mail) after service of a copy of the petition upon the attorney general and county attorney, or within such other period of time as the court may allow, the attorney general or county attorney shall answer or otherwise respond to the portions of the petition that have not been dismissed and shall serve the answer or other response upon the petitioner in accordance with Rule 5(b). Within twenty days (plus time allowed for service by mail) after service of any motion to dismiss or for summary judgment, the petitioner may respond by memorandum to the motion. No further pleadings or amendments will be permitted unless ordered by the court. (10) Hearings. After pleadings are closed, the court shall promptly set the proceeding for a hearing or otherwise dispose of the case. Upon motion for good cause, the court may grant leave to either party to take discovery or to extend the date for the hearing. Prior to the hearing, the court may order either the petitioner or the state or county to obtain any relevant transcript or court records. The court may also order a prehearing conference, but the conference shall not be set so as to delay unreasonably the hearing on the merits of the petition. The petitioner shall be present before the court at hearings on dispositive issues but need not otherwise be present in court during the proceeding. (11) Orders. If the court rules in favor of the petitioner, it shall enter an appropriate order with respect to the validity of the challenged commitment and with respect to rearraignment, retrial, resentencing, custody, bail or discharge. The court shall enter findings of fact and conclusions of law, as appropriate, following any evidentiary hearing or any hearing on a dispositive motion. Upon application of the attorney general or the county attorney, or upon its own motion, the court may stay release of the petitioner pending appeal of its order. (12) Costs. The court may assign the costs of the proceeding, as allowed under Rule 54(d), to any party as it deems appropriate. If the petitioner is unable to pay the costs of the proceeding, the petitioner may proceed upon an affidavit of impecuniosity, in which event the court may direct that the costs be paid by .the county in which the complainant was originally charged. (13) Appeal. Any final judgment or order entered upon the petition may be appealed to and reviewed by the Court of Appeals or the Supreme Court of Utah in accord with the statutes governing appeals to those courts. (c) Other wrongful restraints on personal liberty. (1) Scope. Except for instances governed by paragraph (b) of this rule, this paragraph (c) shall govern all petitions claiming

3 that a person has been wrongfully restrained of personal liberty, and the court may grant relief appropriate under this paragraph. (2) Commencement. The proceeding shall be commenced by filing a petition with the clerk of the court in the district in which the petitioner is restrained or the respondent resides or in which the alleged restraint is occurring^ (3) Contents of the petition and attachments. The petition shall contain a short, plain statement of the facts on the basis of which the petitioner seeks relief. It shall identify the respondent and the place where the person is restrained. It shall state the cause or pretense of the restraint, if known by the petitioner. It shall state whether the legality of the restraint has already been adjudicated in a prior proceeding and, if so, the reasons for the denial of relief in the prior proceeding. The petitioner shall attach to the petition any legal process available to the petitioner that resulted in restraint. The petitioner shall also attach to the petition a copy of the pleadings filed by the petitioner in any prior proceeding that adjudicated the legality of the restraint. (4) Memorandum of authorities. The petitioner shall not set forth argument or citations or discuss authorities in the petition, but these may be set out in a separate memorandum, two copies of which shall be filed with the petition. (5) Dismissal of frivolous claims. On review of the petition, if it is apparent to the court that the legality of the restraint has already been adjudicated in a prior proceeding, or if for any other reason any claim in the petition shall appear frivolous on its face, the court shall forthwith issue an order dismissing the claim, stating that the claim is frivolous on its face and the reasons for this conclusion. The order need not state findings of fact or conclusions of law. The order shall be sent by mail to the petitioner. Proceedings on the claim shall terminate with the entry of the order of dismissal. (6) Responsive pleadings. If the petition is not dismissed as being frivolous on its face, the court shall direct the clerk of the court to serve a copy of the petition and a copy of any memorandum upon the respondent by mail. At the same time, the court may issue an order directing the respondent to answer or otherwise respond to the petition, specifying a time within which the respondent must comply. If the circumstances require, the court may also issue an order directing the respondent to appear before the court for a hearing on the legality of the restraint. An answer to a petition shall state plainly whether the respondent has restrained the person alleged to have been restrained, whether the person so restrained has been transferred to any other person, and if so, the identity of the transferee, the date of the transfer, and the reason or authority for the transfer. Nothing in paragraph 4 (c) shall be construed to prohibit the court from ruling upon the petition based upon a dispositive motion. (7) Temporary relief. If it appears that the person alleged to be restrained will be removed from the court's jurisdiction or will suffer irreparable injury before compliance with the hearing order can be enforced, the court shall issue a warrant directing the sheriff to bring the respondent before the court to be dealt with according to law. Pending a determination of the petition, the court may place the person alleged to have been restrained in the custody of such other persons as may be appropriate.

(8) Alternative service of the hearing order. If the respondent cannot be found, or if it appears that a person other than the respondent has custody of the person alleged to be restrained, the hearing order and any other process issued by the court may be served on the person having custody in the manner and with the same effect as if that person had been named as respondent in the action. (9) Avoidance of service by respondent. If anyone having custody of the person alleged to be restrained avoids service of the hearing order or attempts wrongfully to remove the person from the court's jurisdiction, the sheriff shall immediately arrest the responsible person. The sheriff shall forthwith bring the person arrested before the court to be dealt with according to law.

(10) Hearing or other proceedings. In the event that the court orders a hearing, the court shall hear the matter in a summary fashion and shall render judgment accordingly. The respondent or other person having custody shall appear with the person alleged to be restrained or shall state the reasons for failing to do so. The court may nevertheless direct the respondent to bring before it the person alleged to be restrained. If the petitioner waives the right to be present at the hearing, the court shall modify the hearing order accordingly. The hearing order shall not be disobeyed for any defect of form or any misdescription in the order or the petition, if enough is stated to impart the meaning and intent of the proceeding to the respondent.

(d) Wrongful use of or failure to exercise public authority. (1) Who may petition the court; security. The attorney general may, and when directed to do so by the governor shall, petition the court for relief on the grounds enumerated in this paragraph (d). Any person who is not required to be represented by the attorney general and who is aggrieved or threatened by one of the acts enumerated in subparagraph (2) of this paragraph (d) may petition the court under this paragraph (d) if (A) the person claims to be entitled to an office unlawfully held by another or (B) if the attorney general fails to file a petition under this paragraph after receiving notice of the person's claim. A petition 5 filed by a person other than the attorney general under this paragraph shall be brought in the name of the petitioner, and the petition shall be accompanied by an undertaking with sufficient sureties to pay any judgment for costs and damages that may be recovered against the petitioner in the proceeding. The sureties shall be in the form for bonds on appeal provided for in Rule 73.

(2) Grounds for relief. Appropriate relief may be granted: (A) where a person usurps, intrudes into, or unlawfully holds or exercises a public office, whether civil or military, a franchise, or an office in a corporation created by the authority of the state of Utah; (B) where a public officer does or permits any act that results in a forfeiture of the office; (C) where persons act as a corporation in the state of Utah without being legally incorporated; (D) where any corporation has violated the laws of the state of Utah relating to the creation, alteration or renewal of corporations; or (E) where any corporation has forfeited or misused its corporate rights, privileges or franchises.

(e) Wrongful use of judicial authority or failure to comply with duty.

(1) Who may petition. A person aggrieved or whose interests are threatened by any of the acts enumerated in this paragraph (e) may petition the court for relief. (2) Grounds for relief. Appropriate relief may be granted: (A) where an inferior court, administrative agency, or officer exercising judicial functions has exceeded its jurisdiction or abused its discretion; (B) where an inferior court, administrative agency, corporation or person has failed to perform an act required by law as a duty of office, trust or station; or (C) where an inferior court, administrative agency, corporation or person has refused the petitioner the use or enjoyment of a right or office to which the petitioner is entitled.

(3) Proceedings on the petition. On the filing of a petition, the court may require that notice be given to adverse parties before issuing a hearing order, or may issue a hearing order requiring the adverse party to appear at the hearing on the merits. The court may direct the inferior court, administrative agency, officer, corporation or other person named as respondent to deliver to the court a transcript or other record of the proceedings. The court may also grant temporary relief in accordance with the terms of Rule 65A. 6 (4) Scope of review. Where the challenged proceedings are judicial in nature, the court's review shall not extend further than to determine whether the respondent has regularly pursued its authority. (c) 1953-1993 By The Michie Company

7 ADDENDUM B FEB 4 199/ IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTA|I

THE STATE OF UTAH,

JUDGMENT, SENTENCE Plaintiff, (COMMITMENT)

Case No. Count No. ThAxd^fly&uxtt Honorable Clerk T^/m (Jfal , Reporter; Bailiff. Defendant. Date'

D The motion of to enter a judgment of conviction for the next lower category of offense and impose sentence accordingly is D granted D denied. There being no legal or other reason why sentence should not be imposed, and defendant havmg^beon convicted by D a jury; D the court;Tl plea of guilty; D plea of nOi6ontest; of the offense of ffi? Uld/ ki/6u// , a felony of the #*oegreet D a class misdemeanor, being *row present in court and ready for sentence and represented by^r^Jh 'Z _ and the State being represented by Tfi KexJmf^ , is now adjudged guilty of the above offense, is now sentenced to a term in the Utah State Prison: L/

D to a maximum mandatory term of. years and which may be for life; D not to exceed five years; « of not less than one year nor more than fifteen years; D of not less than five years and which may be for life; D not to exceed years; D and ordered to pay a fine in the amount of $ J9 and ordered to pay restitution in the amount of $. to WfjwHL* /AJ&C (AJ ujtg

D such sentence is to run concurrently with D such sentence is to run consecutively with D upon motion of D State, D Defense, D Court, Count(s) are hereby dismissed. D D Defendant is granted a stay of the above (G prison) sentence and placed on probation in the custody of this Court and under the supervision of the Chief Agent, Utah State Department of Adult Parole for the period of , pursuant to the attached conditions of probation. D Defendant is remanded into the custody of the Sheriff of Salt Lake County D for delivery to the Utah State Prison, Draper, Utah, or D for delivery to the Salt Lake County Jail, where defendant shall be confined and imprisoned in accordance^ with^this Ju/lflment and Commitment. V Commitment shall issue _

DATED this i^clay ofS^fM^A^19 3jL

APPROVED AS TO FORM: DISTRICT COU

Defense Counsel

Deputy County Attorney Page of.

fMftiH*—Court) fGreen—Judge) (Yellow—Jail/Prison/AP&P) (Pink—Defense) (Goldenrod—State) 000003 ADDENDUM C V K 4 *« Attorney Pro Se L/ Utah State Prison f Q. ^SfrX ^C) (address) fts^frfcJK, U** ^CftP> (address)

IN THE"W^__ DISTRICT COURT, S«V;I WS_ COUNTY STATE OF UTAH

Wv^ \.,U , Yft.\oVA (name), * Petitioner, * PETITION FOR WRIT OF * HABEAS CORPUS AND POST vs. * CONVICTION RELIEF STATE OF UTAH, * Case No. QimmQm ACL Respondent. * Judge r ..-- ~ — - ?---»• • > - r. » — •*...^

COMES NOW the Petitioner, Wv.fr, VJE* Nhfr y*vT (name),

pursuant to the following Rule of Civil Procedure (check only one):

X Rule 65B(b) since claim is based on original commitment, or Rule 65B(b) since claim is based on parole violation, or Rule 65B(b) since claim is based on probation violation, or Rule 65B(c) since claim is based on parole grant hearing, and for cause of action alleges as follows: 1. Petitioner is being illegally restrained at the following location (list your address): VQ. ^o>x ^CS Wvst^yWv.

2. Petitioner was convicted and sentenced at the following

Court: (list the district and county of the court or indicate that

it is a Board of Pardons hearing that you are challenging):

The dates of the proceedings in which the conviction (or Board of

Pardons decision) was entered are as follows: ^yA^Q

000002 PETITION FOR WRIT OF HABEAS CORPUS AND POST CONVICTION RELIEF

The case number for these proceedings is: not known; X known and is case number 3. In plain and concise terms, all of the facts on the basis of which the Petitioner claims a substantial violation of rights as the result of the commitment (or terms of parole) are as follows:

CflfrftWlafek \V> TU*. hLfrCtts* V.^v AtvVSL Ett»k tCMM*P.U^l\*tt Cfffc*^ STCREK

4. The judgment of conviction or the commitment for violation of probation or parole has been reviewed on appeal. Yes The number and caption or title of the appellate proceeding and the results of the review are as follows:

X No It was not appealed becausefoTTVgxftaSJv ^-^^ *;**•* *» thagnwrtc^

Question not applicable since this claim concerns a parole grant 2 000003 PETITION FOR WRIT OF HABEAS CORPUS AND POST CONVICTION RELIEF hearing for which there is no appeal or administrative remedy. 5. The legality of the commitment for violation of probation or parole or the legality of the parole grant hearing has been reviewed on appeal. Yes No If so, the reasons for the denial of relief in the prior proceeding are as follows:

6. Petitioner requests that he be appointed legal counsel based on the attached motion and affidavit of impecuniosity. 7. The following documents are attached hereto and incorporated herein by reference (check all that apply): Affidavits that support Petitioner's allegations X Copies of records that support Petitioner's allegations, X Other evidence that supports Petitioner's allegations X Copies of pleadings, orders and memoranda of the Court in any other post-conviction or civil proceeding that adjudicated the legality of Petitioner's commitment 8. Petitioner was unable to obtain and attach the following documents because (list the efforts you made to obtain the documents and the results of your efforts): ^fc_frfo\\\iC V»S^v

9. That pursuant to DRCP Rules 65B(b)(12) and 54(d), Petitioner requests that this Court order the Respondent to obtain such transcripts of proceedings or court records which are relevant 3

000004 PETITION FOR WRIT OF HABEAS CORPUS AND POST CONVICTION RELIEF and material to this case and requests that the county in which he was originally charged be directed to pay the costs of the proceeding. (See attached motion and affidavit of impecuniosity). 10. Due to the continuing nature of the illegal restraint, the statute of limitations set forth in Utah Code Ann. §78-12-31.1 does not bar this action. WHEREFORE, Petitioner prays that this Court: 1. Schedule an evidentiary hearing at which time Petitioner may be present and represented by counsel. 2. Permit Petitioner, who remains indigent, to proceed without prepayment of costs, fees or other assessments. 3. Grant Petitioner the authority to obtain subpoenas in Forma Pauperis, for witnesses and documents necessary to assist in the proof of the facts alleged in the petition as stated above. 4. Issue an Order for Post Conviction Relief to have the Petitioner brought before it, to the end that he may be discharged from the illegal and unconstitutional confinement and restraint.

5. (other relief) \fryft \UL^CKIII% *WK v^tn^sftiAi^^^

Dated this \fr* day of ^JKKl^Jks^ 199.JL.

TOVMA $Ao NkAwJLhk fsion name) xW^K W* Vfti^CTK (print name! Attorney Pro Se 4

OOOOOJ November 25, 1991

3rd District Court c/o Judge Michael Murphy 2^0 East ^00 South Salt Lake City, Utah 84111

Dear Sir:

I appeared in your court room for sentencing on February *l, 19^1 on the charge of Retail Theft.

I respectfully request a printed transcript of my sentencing hear inn:. Also at this time I would like to request a copy of my Judgement, Sentence, and Committment, as soon as possible.

Please advise if there is a charge for this service, what that amount will be, and approximately how long it will tu\:e to receive these documents after receipt of the requested funds.

Respectfully,

David Hewitt, #13051 Oquirrh One P.O. Box 250 Draper, Utah 8*1020

0000C8 Cfjirtr district Court

December 2, 1991 David Hewitt, #13051 Utah State Prison Oquirrh One P. 0. Box 250 Draper, Utah 84020 Dear Mr. Hewitt: Enclosed please find a copy of your Judgment, Sentence and Commitment dated February 4, 1991. I have conferred with the court reporter regarding the transcript you have requested and this is her reply: The Statutory transcript rate is $2.50 per page, which includes an original filed with the Court and a copy to you. Upon a deposit of $50.00, she will transcribe the hearing you requested and notify you of the number of pages and amount due. Make check or money order to Gayle Campbell. Sincerely,

Alice Front Office Clerk for Judge Murphy

240 East 400 South / Salt Lake City, Utah 84111 / 801-535-5581 FEB 4 1991 IN THE THIRD JUDICIAL DISTRICT COURT IN AND FOR SALT LAKE COUNTY, STATE OF UTA|I

THE STATE OF UTAH,

JUDGMENT, SENTENCE Plaintiff. (COMMITMENT)

Case No. Count No. -2L Honorable Clerk V*4tA \JAdJL .

Defendant.

D The motion of. . to enter a judgment of conviction for the next lower category of offense and impose sentence accordingly is D granted D denied. There being no legal or other reason why sentence should not be imposed, and defendant havmg^eon conyicted by D a jury; D the court;** plea of guilty; D plea of no;6ontest; of the offense of *fct»Id// wwy/l , a felony of the ^"rtegrftfi, D a class misdemeanor, being ww present iir court and ready for sentence and represented by£s{Jh T. „ and the State being represented by < UJC4U ., is now adjudged guilty of the above offense, is now sentenced to a term in the Utah State Prison

D to a maximum mandatory term of years and which may be for life; D not to exceed five years; K of not less than one year nor more than fifteen years; D of not less than five years and which may be for life; D not to exceed years; D and ordered to pay a fine in the amount of $ pB and ordered to pay restitution in the amount of $. to ^UAAa^ fa'JboC (A<} UJtq

D such sentence is to run concurrently with D such sentence is to run consecutively with D upon motion of D State, D Defense, D Court, Count(s) are hereby dismissed. D D Defendant is granted a stay of the above (D prison) sentence and placed on probation in the custody of this Court and under the supervision of the Chief Agent, Utah State Department of Adult Parole for the period of , pursuant to the attached conditions of probation. D Defendant is remanded into the custody of the Sheriff of Salt Lake County D for delivery to the Utah State Prison, Draper, Utah, or D for delivery to the Salt Lake County Jail, where defendant shall be confined and imprisoned in accordance with this Judgment and Commitment. Sf Commitment shall issue -^/^(!

APPROVED AS TO FORM:

Defense Counsel

Deputy County Attorney Page. of.

(White—Court) (Green—Judge) (Yellow—Jai»/Prison/AP4P) (Pink—Defense) (GokJenrod—State) 000003 November 30, 1991

?rd District Court c/o Judge Michael Murphy P.no East ^00 South Salt Lake City, Utah R4111

Dear Sir:

I aoDeared in your court room for sentencing on Februarv ^. 1-Q1 on the charge of Retail Theft.

It has been brought to mv attention that an AP*P Resentencing p*?oort ^s preDared and presented to the court concerning my sentencing on this charge.

As of this date I have not had the opoortunity to review this resort and I have r*ood reason to believe that this renort contains both erroneous and misleading facts.

At this time I would like to request a copv of the APJ-^ ^resentencing Peport 2o that Z can review it for any misinformation that it may contain, and ret it corrected by the Courts.

Thankinrr ycu in advance for vour time in this matter.

Respectfully,

Dave Hewitt Oquirrh One P.O. Pox 250 draper, Utah B14020

000003 CJjirir ©istrict Court

December 5, 1991 Dave Hewitt Utah State Prison Oquirrh One P. 0. Box 250 Draper, Utah 84020 Dear Mr. Hewitt: This letter is to inxorm you that after a person is sentenced, the Presentence Report is destroyed. Therefore, we won't be able to fulfill your reguest. Sincerely, •A&t Alice Front Office Clerk for Judge Murphy

240 East 400 South / Salt Lake City, Utah 84111 / 801-535-5581 0000x0 \\\V ,^ Vs * Ww^ (name) Attorney Pro Se Utah State Prison KY¥TYM '^Ti (address 1 ^k^fetK W SftCVACV address)

IN THE ~\WM> DISTRICT COURT, S^g Lfrvs- COUNTY STATE OF UTAH

WuK l» Wuxrrr (name!. * * MOTION FOR PREPARATION OF Petitioner, * TRANSCRIPTS AND COURT RECORDS VS. * AND ORDER * STATE OF UTAH, * Case No. ^CAVyWsx * Respondent. * Judge VVguftfv. \*W>fr>U\,

Petitioner, W^v^ VAP \\fr\^Tt fname). attorney pro se, does hereby move the Court, pursuant to Rule 65(B)(b)(12) and Rule 54(d) of the Utah Rules of Civil Procedure, and based on the accompanying Affidavit of Impecuniosity, to order Respondent to obtain the transcript of the following proceedings or court records which are relevant and material to this case (here list the records you need): ftK^ St^am**^ ^frc*q. li^v..*,cag\* -y*^-**^ OV

and to direct the costs of the proceedings to the county in which Petitioner was originally charged. The transcripts/court records are relevant and material to this case because (here give the reason that you need them):

000011 MOTION FOR PREPARATION OF TRANSCRIPTS AND COURT RECORDS AND ORDER

(continue explanation) taf m-AEiv ?M3t\ ^^fe^^^ "VQ ^\\* C

DATED this TftF* day of YSt^t^^K, 199_\_.

(sion name) ^>v\m\ Vj-j Utv^TvT fprint name) Attorney Pro Se

ORDER Petitioner having filed herein his motion for preparation of transcripts and court records, and good cause appearing:

IT IS HEREBY ORDERED that Respondent shall obtain such transcript of proceedings or court records which are relevant and material to the case. IT IS FURTHER ORDERED that the county in which Petitioner was charged shall pay the costs of the proceedings. DATED this day of , 199 . BY THE COURT:

DISTRICT COURT JUDGE 2

000012 BLEff DISTRICT COim! Third Judicial District

JAN 2 2 1932

SALT LAKE COUNTY

IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

DAVE HEWITT, ORDER Petitioner, CIVIL NO. 901900931 vs. STATE OF UTAH, Respondent.

Defendant has filed a motion requesting a copy of his presentence report and transcripts of four hearings. The request is denied and the denial is appropriate when considering the following chronology: 1. Defendant was sentenced on February 4, 1991 and did not prosecute an appeal therefrom. 2. On November 25, 1991, he requested various court papers and transcripts. The papers requested were referred on December 2, 1991, along with an explanation of the manner in which to acquire transcripts. 2. On November 30, 1991 defendant requested a copy of his presentence report. On December 5, 1991, the court replied and explained that presentence reports are destroyed upon referral of a defendant to the State for incarceration. 000013 HEWITT V. STATE PAGE TWO ORDER

4. On December 11, 1991 defendant requested a docket sheet and on December 17, 1991 the Court sent the requested docket sheet. The Court has been completely responsive to all of defendant's requests. There is no pending matter to which defendant's request for transcripts relates and the Court has complied with all other requests to the extent it has custody of the requested items. For the foregoing reasons, defendant's motion is denied. Dated this £?<* day of January, 1992.

/ MltHAEM/PU: L R. MURPHY DISTRICT COURT JUDGE

000014 HEWITT V. STATE PAGE THREE ORDER

MAILING CERTIFICATE

I hereby certify that I mailed a true and correct .copy

/J of the foregoing Order, to the following, this cPc2 aav of January, 1992:

Dave Hewitt Pro se P.O. Box 250 Draper, Utah 84020 Walter R. Ellett Deputy County Attorney Attorney for Respondent 231 East 400 South, Third Floor Salt Lake City, Utah 84111

A*-

000015 ADDENDUM D DAVID LEE HEWITT ATTORNEY PRO SE UTAH STATE PRISON P.O. BOX 250 DRAPER, UTAH 84020

IN THE THIRD DISTRICT COURT, SALT LAKE COUNTY STATE OF UTAH

DAVID LEE HEWITT, * PETITIONER, * AMENDED PETITION FOR WRIT OF * HABEAS CORPUS AND POST VS. * CONVICTION RELIEF * STATE OF UTAH, * CASE NO. 920900909 RESPONDENT. * JUDGE MICHEAL R. MURPHY

COMES NOW TOE PETITIONER, DAVID LEE HEWITT PURSUANT TO THE FOLLOWING RULE OF CIVIL PROCEDURE RULE 65(b) SINCE TOE CLAIM IS BASED ON ORIGINAL COMMITMENT AND FOR CAUSE OF ACTION ALLEGES AS FOLLOW: 1. PETITIONER IS BEING ILLEGALLY RESTRAINED AT THE FOLLOWING LOCATION: UTAH STATE PRISON, P.O. BOX 250, DRAPER, UTAH 84020. 2. PETITIONER WAS CONVICTED SENTENCED AT THE FOLLOWING COURT: THIRD DISTRICT COURT, SALT LAKE COUNTY. THE DATE OF THE PROCEEDINGS IN WHICH THE CONVICnON WAS ENTERED ARE AS FOLLOWS: 11/19/90 2/4/90 THE CASE NUMBER FOR THESE PROCEEDINGS IS CASE NUMBER 901900931 3. THE FACTS ON THE BASIS OF WHICH THE PETITIONER CLAIMS A SUBSTANTIAL VIOLATION OF RIGHTS AS RESULT OF THE COMMITMENT ARE AS FOLLOWS: A. THAT THE COURT RULED ON BOTH ERRONEOUS AND UNCONSTITUTIONAL INFORMATION IN DETERMINING THE PETITIONER'S SENTENCE. SUCH AS A MISLEADING AP&P PRESENTENCING REPORT AND UNCOUNSELED CRIMINAL CONVICTIONS. B. THAT THE COURTS ACCEPTED A PRESENTENCING REPORT FROM AN AP&P AGENT WHOM NOT ONLY HAD A CONFLICT OF INTEREST IN THIS CASE BUT ALSO WAS PREJUDICIAL AND BIAS BEFORE PREPARING THE REPORT FOR THE COURT. C. THAT THE COURT FAILED TO ASK PETITIONER IF HE HAD ACCESS TO REPORT AND DID NOT EXPRESSLY INQUIRE WHETHER PETITIONER AND COUNSEL READ AND DISCUSSED PRESENTENCE REPORT.

000053 AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND POST RELIEF

D. THAT THE COURT FAILED TO ASK PETITIONER IF EVERYTHING CONTAINED IN THE REPORT WAS TRUE AND CORRECT. E. THAT BOTH THE COUNTY ATTORNEY AND THE SALT LAKE COUNTY SHERIFF'S OFFICE CONSPIRED TO PRESENT BOTH ERRONEOUS AND MISLEADING INFORMATION TO THE COURT AT THE TIME OF THE PETITIONER'S SENTENCING. THAT THE COUNTY ATTORNEY DTD ATTACK THE PETITIONER'S CHARACTER AND CREDIBILrrY WITH VINDICTIVE MALICE IN FACT. F. THAT THE COURT STATED WHILE ON THE RECORD AND IN THE COURTROOM ON SEVERAL OCCASIONS THAT THERE WOULD NOT BE ANY RESTITUTION IN THIS CASE AND THEN AFTERWARDS ORDERING SUCH IN THE JUDGMENT AND SENTENCING DOCUMENT. 4. THE JUDGMENT OF CONVICTION OR COMMITMENT HAS NOT BEEN REVIEWED ON APPEAL BECAUSE OF THE PETITIONER LACK OF RESOURCES AND KNOWLEDGE OF LAW PROCEDURES, LACK OF ACCESS TO LAW MATERIAL, AND INFORMATION, MISUNDERSTANDING OF COURT INFORMATION, AND THE INEFFECTIVE ASSISTANCE OF COUNSEL. 5. PETITIONER REQUESTS THAT HE BE APPOINTED LEGAL COUNSEL BASED ON THE ATTACHED MOTION AND AFFIDAVIT OF IMPECUNIOSITY. 6. THE PETITIONER DID ATTACH SEVERAL LETTERS, ORDERS, AND MOTION TO THE ORIGINAL PETITION AND HEREBY REQUEST THAT THEY ALL BE INCORPORATED INTO THE AMENDED PETITION. 7. THAT PURSUANT TO URCP RULES 65(b)(12) AND 54(d), PETITIONER REQUESTS THAT THIS COURT ORDER THE RESPONDENT TO OBTAIN SUCH TRANSCRIPTS OF PRCEEDINGS OR COURT RECORDS WHICH ARE RELEVANT AND MATERIAL TO THIS CASE AND REQUESTS THAT THE COUNTY IN WHICH HE WAS ORIGINALLY CHARGED BE DIRECTED TO PAY THE COSTS OF THE PROCEEDING. 8. DUE TO THE CONTINUING NATURE OF THE ILLEGAL RESTRAINT, THE STATUTE OF LIMITATIONS SET FORTH IN UTAH CODE ANN. §78-12-31.1 DOES NOT BAR THIS ACTION. WHEREFORE, PETITIONER PRAYS THAT THIS COURT: 1. SCHEDULE AN EVIDENTIARY HEARING AT WHICH TIME THE PETITIONER MAY BE PRESENT AND REPRESENTED BY COUNSEL. 2. PERMIT PETITIONER, WHO REMAINS INDIGENT, TO PROCEED WITHOUT PREPAYMENT OF COST, FEES OF OTHER ASSESSMENTS. 3. GRANT PETITIONER THE AUTHORITY TO OBTAIN SUBPOENAS IN FORMA PAUPERIS, FOR WITNESSES AND DOCUMENTS NECESSARY TO ASSIST IN PROOF OF THE FACTS ALLEGED IN THE PETITION AS STATED ABOVE. 000053 AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND POST CONVICTION RELIEF

4. THAT ILLEGALLY AND UNCONSITUTIONAL SENTENCE BE VACATED AND SET ASIDE. 5. ISSUE AN ORDER FOR POST CONVICTION RELIEF TO HAVE THE PETITIONER BROUGHT BEFORE IT, TO THE END THAT HE MAY BE DISCHARGED FROM THE ILLEGAL AND UN CONSTITUTIONAL CONFINEMENT AND RESTRAINT.

DATED THIS j^DAY OF "AINV^ , 1992.

DAVID LEE HEWITT ATTORNEY POR SE

000060 I dc hereby certify that a true and correct copy of the fceroinr was nailed, oosta^e nre-oaid to the Attornev General's Office, at 6^00 .South ?.0f East, Ste. 20'!, Salt'Lake City, Utah RU107 on this 17th day of June. 199° W^ \A

000061 ADDENDUM E >-• -t :c , ;,

R. PAUL VAN DAM (3312) BY Gf_ Attorney General DAVID F. BRYANT (5672) Assistant Attorney General Attorneys for Respondent 300 East 6100 South, Suite 204 Murray, Utah 84107 Telephone; (801) 265-5638

IN THE THIRD JUDICIAL DISTRICT COURT, SALT LAKE COUNTY STATE OF UTAH

DAVID LEE HEWITT, MOTION TO DISMISS Petitioner, v. STATE OF UTAH, Case No. 920900909 HC Respondent. Judge Leslie A. Lewis

Respondent, by and through David F. Bryant, hereby moves this court to dismiss Petitioner's petition for writ of habeas corpus because it is time-barred; raises claim which could and should have been raised on appeal; fails to state a claim on which relief can be granted, and fails to comply with the requirements of Utah R. Civ. P. 65B(b).

000021 DATED this n£*la y of March, 1992.

ttttD F. BRYAUT" r Assistant Attorney al

MAILING CERTIFICATE I hereby certify that on the ID day of March, 1992, I caused to be mailed, postage prepaid, a copy of the foregoing to David Lee Hewitt, pro se, P.O.Box 250, Draper, Utah 84020.

•AiMhaW

000022 R. PAUL VAN DAM (3312) Attorney General of DAVID F. BRYANT (5672) Assistant Attorney General Attorneys for Respondent 300 East 6100 South, Suite 204 Murray, Utah 84107 Telephone: (801) 265-5638

IN THE THIRD JUDICIAL DISTRICT COURT, SALT LAKE COUNTY STATE OF UTAH

DAVID LEE HEWITT, MEMORANDUM IN SUPPORT Petitioner, : OF MOTION TO DISMISS v. : STATE OF UTAH, : Case No. 920900909 HC Respondent. : Judge Leslie A. Lewis

Respondent, by and through David F. Bryant, hereby submits this memorandum in support of its motion to dismiss Petitioner's petition for writ of habeas corpus. ARGUMENT Petitioner claims in his petition that he has suffered a substantial denial of his rights in four areas. He claims the Adult parole and Probation agent who prepared his presentence report was "prejudicial." He further claims he suffered a substantial violation of his rights in that the court failed to ask 1

000023 him if he had access to the presentence report or whether he had discussed it with his counsel. Additionally, Petitioner claims a substantial violation of his rights in that the court failed to ask him if everything in the report was true and correct. Finally, Petitioner claims a substantial denial of his rights in that the court allegedly stated from the bench that no restitution would be required, yet it was ordered in the written order sentencing Petitioner. POINT I ALL OF PETITIONER'S CLAIMS ARE TIME-BARRED. Although Petitioner's petition provides only scant information, it appears he was convicted on February 4, 1990. The petition further states that there was no appeal of the conviction. Petitioner did not file his post-conviction writ until February 11, 1992 — some 24 months later. Such a delay is well beyond the three months allowed under Utah Code Ann. § 78-12-31.1. It states in pertinent part: Within three months: For relief pursuant to a writ of habeas corpus. This limitation shall apply not only as to grounds known to petitioner but also to grounds which in the exercise of reasonable diligence should have been known by petitioner or counsel for petitioner. Petitioner's petition is approximately 21 months late. He should have known, through the "exercise of reasonable diligence" of any

000024 claims to be raided through post-conviction avenues. Therefore, even if this coutft were to decline to dismiss the petition on the bases raised below, it must be dismissed because it is time-barred. POINT II PETITIONER'S PETITION SHOULD BE DISMISSED BECAUSE HE COULD AND SHOULD HAVE RAISED AliL HIS CLAIMS ON DIRECT APPEAL. It is well-established that the post-conviction writ of habeas corpus, "is not a substitute for and cannot be used to perform the function of regular appellate review." Codianna v. Morris, 660 P.2d 1101 (Utah 1983). See also, Andrews v. Morris: Rammel v. Smith, 560 P.2d 1108 (Utah 1979). Consequently, Petitioner cannot raise issues in a habeas proceeding that could or should have been raised on direct appeal. In this case, Petitioner obviously knew after sentencing that the alleged violations of his rights had occurred and he should have appealed. The Utah Supreme Court in Brown v. Turner, 440 P.2d 968 (Utah 1968), stated: If the contention of error is something which ig known or should have been known to the party at tfte time the judgment was entered, it must be reviewed in the manner and within the time permitted by regular prescribed procedure, or the judgment becomes final and is not subject to further attack, except in some unusual circumstance. . . . [W]ere it otherwise, the regular rules of procedure governing appeals and the limitations of time specified therein would be rendered impotent. 3

000025 Id- at 969. Petitioner states in his petition that he did not appeal because his counsel did not inform him the court had erred. This is likely because the court did not err, however, if Petitioner desired an appeal, he should have requested his counsel pursue it. Simply because Petitioner's counsel did not tell him the court had erred when it did not, does not rise to the level of an "unusual circumstance" contemplated by the Utah Supreme Court in Brown v. Turner. Because Petitioner cannot attack his conviction in the absence of regular appellate review, this claim is barred and should be dismissed. POINT III THE PETITION SHOULD BE DISMISSED BECAUSE IT FAILS TO COMPLY WITH THE REQUIREMENTS OF UTAH R. CIV P. 65B(b). Utah R. Civ. P. 65B(b)(3)(iii) requires Petitioner to state "all of the facts on the basis of which the petitioner claims a substantial violation of rightsf.]" Furthermore, Utah R. Civ. P. 65B(b)(4) mandates that a petition for post-conviction relief include "affidavits, copies of the records, or other evidence" to support the allegations. Petitioner has failed to do so. Petitioner claims, for example, that his presentence report was prepared by a prejudicial agent. Yet Petitioner does

000026 not support either his claim by explaining how the agent was prejudiced. Petitioner also claims, as enumerated above, that the court committed other errors relating to asking Petitioner what Petitioner believes to be required questions concerning the presentence report. Petitioner fails to explain how or why the court would be required to ask the questions he addresses in his claims, or how the failure to ask them constitutes a substantial violation of his rights. Additionally, Petitioner claims the court at some point stated from the bench that there would be no restitution ordered, yet the court ordered restitution in the final written order. However, Petitioner supports his claim with no documentation of any kind.1 So, again there is failure to comply with the requirements of Rule 65B(b). Furthermore, even if Petitioner supported his allegation, it is a well settled principle that "oral statements of the trial court are superseded by written findings, judgment, or verdict." State v. Wade, 572 P.2d 398, 399 n.3 (Utah 1977), overruled on other grounds, State v. Chavez, 605 P.2d 1226, 1227 (Utah 1979). See also McCollum v. Clothier, 241 P.2d 468 (1952); Park v. Jameson, 364 P.2d 1 (1961), and Drurv v. Lunceford, 415 P.2d 662, 662 (1966). Therefore, that claim must also be

Petitioner's petition states there are documents attached to the petition to support his allegations, however, there were no attachments to the petition received by Respondent. 5

000027 dismissed. Petitioner has made bare unsupported allegations and provides absolutely no evidence to substantiate his claim. This being the case, pursuant to Utah R. Civ. P 12(b)(1) and (6), the petition should be dismissed for failure to state a claim upon which relief can be granted. The Utah Supreme Court has repeatedly held that failure to follow the procedural requirements of Rule 65B(i) should result in dismissal of the case. See e.g., Andrews v. Morris, 607 P.2d 816 (Utah 1980). mandates that a petition for post-conviction relief include "factual data constituting each and every manner in which the complainant claims that any constitutional rights were violated" and, additionally, mandates that the complainant attach affidavits, copies of the records, or other evidence to support the allegations. CONCLUSION In light of the fact that the statute of limitations has expired; that Petitioner's petition raises claims which could and should have been raised on appeal; fails to state claims on which relief can be granted, and fails to comply with Rule 65B(b), Respondent respectfully requests this court dismiss the Petition for writ of habeas corpus.

000023 ik DATED this /* day of March, 1992.

WTD F. BRYANT Assistant Attorney

MAILING CERTIFICATE I hereby certify that on the YSr^ day of March, 1992, I caused to be mailed, postage prepaid, a copy of the foregoing to David Lee Hewitt, pro se. P.O.Box 250, Draper, Utah 84020.

UMrk^ihnU^

000023 ADDENDUM F &•:!•:. Tiv David Lee Hewitt Attorney Pro Se Utah State Prison MAR 3 0 1S32 P.O. Box 250 Draper, Utah 84020

IK THE THIRD JUDICIAL DISTRICT COUPT, SALT LA^E COUNTY STATE OF UTAH

DAVID LEE HEWITT, * Petitioner, * RESPONSE TO RESPONDENT'S * MOTION TO DISMISS vs. * * Case No. 920900009 STATE OE UTAH, * Jud^e Leslie A. Lewis Respondent. *

Petitioner, by and through himself, Pro Se, hereby moves this the Court to deny Respondent's Motion to Dismiss. This request is based and made because the Petitioner is within his ripht to file and have the courts hear a petition for habeas corpus. The Petitioner has brought forth several claims which are meritorious and has complied to the best of his ability with the requirements of Utah R. Civ. P. 65B(b).

Dated this 19th day of March, 1992.

W>A'&^^VV^L David Lee Hewitt

CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the fore^oin^ was nailed, postage pre-paid to the Attorney General's Office, at 6100 South 300 East, Ste. 204, Salt Lake City, Utah 84107 on this 19th day of March, 199?. WSl d^.Vv&s

000030 David Lee Hewitt Attorney Pro Se T Utah State Prison P.O. Box 250 MAR 3 0 1392 Draper, Utah R4020

Zy-CA

IN THE THIRD JUDICIAL DISTRICT COURT, SALT LAKE COUNTY STATE OF UTAH

DAVID LEE HEWITT, * Petitioner, * MEMORANDUM IN SUPPORT OF * PETITIONER REOUESTS TO vs. DENY MOTION TO DISMISS « STATE OF UTAH, * Case No. 920900909 Respondent. * Judre Leslie A. Lewis

Petitioner, by and through himself, hereby submits this memorandum in support of Petitioner request to deny Respondent's Motion to

Dismiss.

ARGUMENT

Respondent claims that Petitioner's Writ of Habeas Corpus should be dismissed on three different points. Respondent claims that all of

Petitioner's claims are time-barred. Respondent further claims that

Petitioner's petition should be dismissed because Petitioner could and should have raised all his claims on direct appeal. Additional, Respondent claims that the petition should be dismissed because it fails to comply with the requirements of Utah R. Civ. P. 65B(b).

POINT I

ALL OF PETITIONER'S CLAIMS ARE TIME-BARRED. Petitioner answers "nay"

In this point the Respondent uses and states Utah Code Ann. S 7R-1P-31.1.

Petitioner is completely uneducated in law procedures. The Petitioner does not have the money nor the resources to properly research, attack, nor properly file his grievance with the courts.

00003i Petitioner did not know of the existence of a presentencing report, or the right to review such until brought to Petitioner attention in Nov. 1991.

Petitioner would state that Utah Judicial Code 7*-12-31.1. Is constitutionally incorrect when comparing it to the Constitution of The United States, Article I

Section 9(2), STre prlvtlegeTof' the writ of habeas corpus shall not be suspended,..., Constitution of the United States (Pill of Rights), Amendment I the right to petition the government for a redress of grievances. Also the

Constitution of Utah (Declaration of Rights). Article I Section I - (Inherent and Inalienable rights), protest against wrongs, and petition for redress of grievances. Article I Section 5(Habeas Corpus), the privilege (of writ of habeas corpus) shall not be suspended, unless in case of rebellion or invasion, the public safety requires it. (emphasis added) In none of these, Article I

Section I and 5 or in the Constitution of the United States, Article I Section

9(2), and the first amendment of the Bill of Rights is there any mention of any time limit in which these rights do and can apply. Petitioner also notes that the Constitution of the United States and all Federal Laws are the supreme law of the land. Additionally, because of the continuing violation of the

Petitioner rights, he should not be bound by the original three month time limit in which to file.

POINT II

PETITIONER'S PETITION SHOULD BE DISMISSED BECAUSE HE COULD AND SHOULD HAVE RAISED ALL HIS CLAIMS ON DIRECT APPEAL. Petitioner answers "nay"

In this point Respondent mainly cites Brown v. Turner, MO P.2d 968(Utah

1968). Because of Petitioner lack of understanding law procedures, he relied in

-2- 000032 rood faith in his court appointed Public Defender. When the petitioner entered a guilty plea to this charge and was told by the court that he was giving up the right to an appeal. He presumed this to mean any and all appeals,

Petitioner did not have effective assistance of counsel during the procedures of this court litigation or during the sentencing phase of this process. Also if Petitioner would have knovm, which he did not, he could have appealed the sentence, and then would have, but would not have the appeal been a sham in lidnt of the defense Petitioner had already received from his court aopointed attorney. Cites Dunn v. Cook 791 P.2d

B?3(Utah 199^). Had the attorney gone over the presentence report with

Petitioner and then discussed the consequences of the judgement against hin and informed him of any meritorious grounds for an appeal or the right to an appeal, this claim would not be in front of the Honorable Court right now.

However even with the Petitioner claim of ineffective assistance of counsel during trial and then the sentencing, should not have the court shared some of the resposibility to make sure that the Petitioner did have and was given at least due process of his rights and of the law. Petitioner further cites in part, Bryant v. Turner, 19 Utah 2d 2B4, 431 P.2d 121(1967); Oallegos v. Turner,

17 Utah 2d 273, ^09 P,2d 386(1965).

POINT III

THE PETITION SHOULD BE DISMISSED BECAUSE IT FAILS TO COMPLY WITH THE REQUIREMENTS OF UTAH R. CIV. P.65B(b). Petitioner answer wnayff

In this last point the Respondent primarily cites Utah R. Civ. P.

65B(b)(3)(iii). Prior to having this petition filed with the court, the

Petitioner did attach letters, a motion and order to and from the Third

-3- 000033 Tistrict Court, to the petition. Petitioner then gave everythinr to the

Contract Attorneys for then to make three copies of. Two for the court and one for the Petitioner's filef then requested that they file the two complete copies with the court. Petitioner received back his copy for his file and did assume that his request had been completely followed through with.

Once arain Petitioner states that he is completely uneducated in law procedures. The Petitioner does not have the money nor the resources to pronerly research, attack nor file his grievances with the courts. Petitioner has asked both the courts and the Dept of Corrections for copies of records, documents, and affidavits so that he may fully address the courts with his grievances, but so far has been turned down at both ends.

To address the issue that the Respondent brought up concerning questions that should have been asked during the sentencing phase of the court proceedings, Petitioner cites both U.S. v. Miller, and U.S. v. Pone.

In this case, as was the case of U.S. v. Miller, P49 F.2d 895, fW*th Cir.

19BB), the opinion that the court stated was to remand for resentencing when the court did not expressly inquire whether defendant and counsel read and discussed presentence report and no evidence sunnorting inference that read likewise in the case of U.S. v. Rone, 7^3 F. 2d 1159, 1173-74(7th Cir. 19p4), the opinion of the court was to remand for resentencing when not clear that defendant had access to report and court failed to ask defendant if he had read report. Accordingly Fed* F. Crim. P. 32(a)(1)(A) and Utah Rules of Judicial

Administration Rule 4-203(2) both state Petitioner was entitled to the presentencing report.

Additional the Respondent has stated on the claim of restitution that "oral statements of the trial court are superseded by written

000034 findings, judgement, or verdicts.ff However the Petitioner did not take nor does he believe the court intended the statement made by the trial judge that there would be no restitution in this case, as an opinion or as an assurance but rather as a ruling in this case, which would be constant with Utah Rules of

Judicial Administration Rule 6-302(2).

CONCLUSION

Vfherefore the Petitioner prays that the Honorable Court allows the Petitioner to proceed and that the Court set a date for an

Evidentiary Kezrin? pursuant to Arcicle I Section 11 of the Utah Constitution.

DATED this 19th day of March. 1992.

m\m^\^^ David Lee Hewitt

CERTIFICATE OF SFPVICE

I do hereby certify that a true and correct copy of the foregoing was mailed, postage pre-paid, to the Attorney Generalfs Office, at 6100. South 300 East, Ste. 204, Salt Lake City, Utah S4107 on this 19th day of March, 1992.

SES&A^&QL \ftV^

000035 ADDENDUM G FUB* DISTRICT C9U 1ST "Tb'-vJ Judical D'ss*^ct

DEC 1 6 1992

Srki-l LAfvd ooy.n i Y

Deputy Clerk

IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

DAVID L. HEWITT, SUMMARY DECISION AND ORDER Petitioner, CASE NO. 920900909 vs. STATE OF UTAH, Respondent.

Petitioner makes these allegations of error at his sentencing hearing: (1) that the court allowed a biased agent of AP&P to prepare the presentence report; (2) that the court failed to ask petitioner if he had access to the report and discussed the report with his counsel; (3) that the court failed to ask petitioner whether the presentence report was accurate; and (4) that the court failed to orally order restitution but included a restitution requirement in the subsequent written judgment. While petitioner has filed an amended petition, the amended allegations do not alter the thrust of his claims. The fourth of these allegations is easily resolved. The petitioner is clearly and unequivocally wrong in his factual

000081 HEWITT V. STATE PAGE TWO SUMMARY DECISION allegation. A transcript of the sentencing hearing indicates the court expressly ordered restitution as part of its sentence. The other allegations share at least three characteristics: (1) they were not raised at the sentencing hearing; (2) had they been raised they could have and would have been addressed; and (3) they were not the subject of a direct appeal. As a consequence, respondent's waiver and statute of limitations arguments are persuasive. The Court is now cognizant of a separate petition, No. 920900797, which the petitioner has filed. This Summary Decision and Order is not intended to resolve that petition. The clerk has communicated to the respondent in that case that it must respond to the petition as earlier ordered or risk default. For the foregoing reasons, the petition is dismissed. Dated this / "> day of December, 1992.

MICHAEL R. MURPHY / DISTRICT COURT JUDGE

000082 HEWITT V. STATE PAGE THREE SUMMARY DECISION

MAILING CERTIFICATE

I hereby certify that I mailed a true and correct copy of the foregoing Summary Decision and Order, to the following, this I(p day of December, 1992:

David L. Hewitt Pro se P.O. Box 250 Draper, Utah 84020 Angela Micklos Assistant Attorney General Attorney for Respondent 300 East 6100 South, Suite 204 Murray, Utah 84107 Honorable Timothy R. Hanson 240 East 400 South Salt Lake City, Utah 84111

"T^7vjWr

000083 ADDENDUM H 526 SUPREME COURT OP UTAH [Dec. 1923] SUPREME COURT OP UTAH 527

Taylor v. G. M. Co., 62 Utah 520 Habeas Corpus

of the court. The action originally was upon promissory notes. It is so alleged in the complaint under considerationv ARESON v. PINCOCK, Sheriff. A promissory note carries with it the presumption of a con sideration. The defendant in the law action, appellant here, No. 4082. Decided December 1, 1923. #(220 Pac. 503.) filed a motion to strike certain parts of the complaint. The 1. BREACH OF THE PEACE—ELEMENT or FEAB NOT REQUIRED BY STAT court granted the motion. In the order it authorized the filing UTE TO BE STATED IN COMPLAINT. Under Comp. Laws 1917, §f of an amended complaint. Thereafter, without any new or 8567-8570, 8575, providing for arrest and placing under security amended complaint being filed, the court entered judgment in to keep the peace, the element of fear that threats will be car favor of the plaintiff and against the defendant in that ac ried out is not required to be specifically stated in the com plaint, but is to be concluded from facts laid before the magis tion. Every presumption is in favor of a judgment entered trate as a prerequisite to issuance of the warrant. by a court of general jurisdiction. This court is unable to see any fallacy in the statement in the opinion that, in the 2. BREACH OF THE PEACE—PROOF OF THREATENED OFFENSE AND BE LIEF OF COMPLAINANT NOT AS MATTER OF LAW INSUFFICIENT TO absence of any showing to the contrary, it must be presumed AUTHORIZE WARRANT. It cannot be said as a matter of law that that the complaint, after certain parts were stricken, con sworn proof of a threatened offense and the belief of complain tained the necessary allegation to constitute a cause of action. ant that it will be carried into execution is insufficient to au The presumption indulged in favor of judgments carries with thorize a magistrate, to conclude that there is Just reason to it that implication. fear the commission of the offense for the purpose of issuing a warrant to require security to keep the peace. The appellant invokes the aid of a court of equity to re strain the enforcement of that judgment without alleging any 3. HABEA8 CORPUS—DEFECTS OF JURISDICTIONAL CHARACTER TAKEN facts showing that appellant had any defense, either equita COGNIZANCE OF BY HABEAS CORPUS. Habeas corpus takes cog nizance only of jurisdictional defects which render a proceed ble or legal, to the cause of action stated in the complaint in ing not merely voidable, but absolutely void. the law action. The authorities are uniform that any one asking the assistance of a court of equity to enjoin the en 4. HABEAS CORPUS—QUESTION OF SUFFICIENCY OF COMPLAINT IN PRO CEEDING FOB SECURITY TO KEEP PEACE NOT ONE OF JURISDICTION. forcement of a judgment entered in a law action must, in the The question whether the complaint in a proceeding to require complaint, state some fact or facts from which it can be rea security to keep the peace was sufficient to state a cause of sonably inferred that to permit the enforcement of the judg action where it omitted to state that there was reason to fear ment would be against good conscience and result in an in the commission of the offense threatened was not one of juris diction, and cannot be inquired into in habeas corpus proceed justice to the complaining party. This court attempted to ings. point out in its opinion that the complaint in the instant case fails to state any such facts. 5. BREACH OF THE PEACE:—JUDGMENT IN PRESENT TENSE INSTEAD OF AS TO TIME COMPLAINT FILED HELD SUFFICIENT. In proceeding Rehearing denied. to require security to keep the peace, a judgment finding that there is just reason to fear that defendant will carry into execu tion the threat made is not fatally defective because in the present tense instead of aB of the time when complaint was filed.

Original application by Nels Areson for writ of habeas corpus against R. D. Pincoek, as sheriff of Weber County. 528 SUPREME COURT OP UTAH [Dec. 1923] SUPREME COURT OF UTAH 529

Areson v. Pincock, 62 Utah 527 Habeas Corpus

The particular respects wherein it is claimed the restraint WRIT DENIED. is illegal are: (1) That the complaint is insufficient to state a cause of action or to confer jurisdiction upon the court, John G. Willis, of Ogden, for plaintiff. because it omits to state ' * that there is just reason to fear the commission of the offense threatened"; that the state D. J. Wilson, Co. Atty., of Ogden, for defendant. ment in the complaint "that the complainant verily believes that unless said defendant is arrested and placed under se CHERRY, J. curity to keep the peace he will carry out his threats," etc., Upon the petition of Nels Areson, alleging that he was is insufficient; and (2) that the finding of the magistrate "that there is just reason to fear that defendant will carry illegally restrained of his liberty by the sheriff of Weber into execution the threats so made" is fatally defective be county, a writ of habeas corpus was issued, to which the cause it is in the present tense, and relates to the time of sheriff made his return according to law. hearing, and fails to find that such fear existed at the time The facts necessary to be considered are alleged in the complaint was made. petition, and are not disputed. On June IS, 1923, Geo. F. The proceedings had before the magistrate are authorized Fullmer filed a complaint before Hon. George S. Barker, by Comp. Laws Utah 1917, §§ 8567-8583, and the particular judge of the Second judicial district court, sitting as a matters here involved are governed by the following pro magistrate, charging Nels Areson, defendant (the petitioner visions : herein), with having made a series of specific threats of per Section 8567. "A complaint may be made before any magis sonal violence against him, on divers dates on and between trate that a person has threatened to commit an offense against the January 21, 1922, and June 6, 1923, and "that complainant person or property of another." verily believes that unless said defendant is arrested and Section 8568. "The magistrate must examine on oath the com placed under security to keep the peace that he will carry plainant and any witnesses he may produce, and may take their out his threats against this complainant and others, for said depositions in writing." Section 8569. "A complaint within the meaning of this chapter defendant is prepared to execute his threats unless re Is a statement in writing of the jurisdictional facts, clearly specify strained. " ing the threatened offense, and subscribed and sworn to by the com A hearing was had before the magistrate on November plainant." 14, 1923, at the conclusion of which he found that "the Section 8570. "If it appears that there is just reason to fear the commission of the offense threatened, the magistrate may issue defendant has frequently tlireatened to inflict great bodily a warrant directed generally to any peace officer, reciting the sub harm upon the complainant, even to kill the complainant, stance of the complaint and commanding the officer forthwith to and it further appearing that there is just reason to fear arrest the person complained of and bring him before such magis that said defendant will carry into execution the threats so trate, or, in case of his absence or inability to act, before the near made," and ordered the defendant to enter into an under est and most accessible magistrate of the county." Section 8575. "If, however, there is just reason to fear the com taking in the sum of $2,000 to keep the peace, etc., or in mission of the offense, the person complained of may be required to default thereof to be committed to the custody of the sheriff enter into an undertaking in such sum, not exceeding $3,000, as to be by Mm imprisoned in the county jail until he give such the magistrate may direct, with one or more sufficient sureties, to undertaking or is legally discharged. keep the peace toward the people of this state, and particularly The defendant failed to give the undertaking, whereupon toward the complainant. * * •" a commitment was issued pursuant to the order, and he was It is thus seen that the element of fear is not required imprisoned in the county jail of Weber county. 530 SUPREME COURT OP UTAH [Dec. 1923] SUPREME COURT OP UTAH 531

Areson v. Pincock, 62 Utah 527 Habeas Corpus by the statute to be specifically stated in the com cases involving the sufficiency of complaints to charge misdemean plaint, but is to be concluded by the magistrate from * 1 ors, although probably the doctrine was not intended to be limited to this class of cases, that after trial and conviction for an alleged the facts laid before him, as a prerequisite to the issu misdemeanor a prisoner will not be liberated on a writ of habeas ance of the warrant. The whole matter is reduced to the corpus because of the Insufficiency of the complaint, if, by any question of whether the showing made to the magistrate possible construction of the language employed therein, an offense was sufficient to authorize him to conclude that there was against the law is thereby even defectively stated." just reason to fear the commission of the threatened offense. In re Gregory, 219 U. S. 210, 31 Sup. Ct. 143, 55 L. Ed. We are not prepared to say as a matter of law that sworn 184, Mr. Justice Hughes, speaking for the court, in a case proof of a threatened offense, and the belief of com where colorable questions were presented by the information plainant that it will be carried into execution, is in- 2 and evidence, stated the rule as follows: sufficient to authorize a magistrate to conclude that "A habeas corpus proceeding cannot be made to perform the there is just reason to fear the commission of the offense function of a writ of error and we are not concerned with the ques threatened for the purpose of issuing a warrant of arrest. tion whether the information was sufficient or whether the acts set forth in the agreed statement constituted a crime, that is to say, But the question is not one of jurisdiction, and may not whether the court properly applied the law, if it be found that the be inquired into in habeas corpus proceedings. It cannot be court had jurisdiction to try the issues and to render the judgment." denied that the court had jurisdiction generally to try the The petitioner's objection to the complaint considered as issues and make the order complained of. Habeas corpus the basis of mere error is most hypercritical, and it is so^ takes cognizance only of defects of a jurisdictional char unrelated to the subject of jurisdiction that it cannot be acter, which render the proceedings not merely void considered at all in a habeas corpus case. able, but absolutely void. Bruce v. East, 43 Utah, 3,4 The second objection to the proceedings is even less meri 327, 134 Pac. 1175. The rule is well settled and is torious. Counsel for petitioner has cited cases to the effect supported by many cases. See annotation to Ex parte Rob that it is not a defense, or a ground for imposing costs upon inson, L. R. A. 1918B, 1148. The following excerpt from the complaining witness, to show that, notwithstanding there the annotation above referred to indicates the extent to were just grounds for fearing a breach of the peace which the rule is applied: when the complaint was filed, the grounds for such 5 "It has been said that, if from the accusation the court can de fear did not exist at the time of trial. State v. Sayer, duce that the prosecutor intended to charge an act which is a crime, habeas corpus will not lie, however defectively the act is described; 35 Ind. 379; State v. Steward, 48 Ind. 146; Stone v. State, also that if the indictment or information purports or attempts to 97 Ind. 345. No such questions arose in the proceedings state an offense, and the court has jurisdiction to pass upon the now under consideration, nor is it seen how these proceedings sufficiency of those statements, the defendants after conviction will give any support to the proposition that a judgment is void not be released on habeas corpus; and that, 'if a criminal charge because it is expressed in the present tense, instead of as is colorable, or "sufficient to set the judicial mind in motion" or of the time when the complaint was filed. The objection is to call upon it to act, or makes some approach towards charging a criminal offense, or intimates the facts necessary to constitute the groundless, and not worthy of further comment offense and a purpose to declare thereon, or tends to show a crim The petition is denied, and the prisoner remanded to the inal offense, no matter how informal or defective, or has a legal custody of the sheriff. tendency to prove each requirement of the statute, it will shield the proceedings from collateral attack. In a word, no errors or WEBER, C. J., and GIDEON, THURMAN, and PRICK, irregularities not going to the question of jurisdiction are review JJ., concur. able on habeas corpus.' The rule has been laid down in several 988 03 1'ACIFIO UUroUTEU. (l>tuh. clerk of the district court of any county, and 2. SAME—SPECIAL PROCEEDINGS. _.TRICK, J. On th<2 loth day of June, 1907, j lual. The purpose is to protect ui viuujiu.., there docketed, an execution may Issue there Habeas corpus belongs to what, under IfcJ & complaint in due form was filed before Jo a civil right The person is restrained of bis on, and a Hen on the real property of the Code, are termed "special proceedings." • V?3 seph J. Williams, a justice of the peace of liberty, and the purpose of the whole proceed judgment debtor Is created. When such an 3. SAME—APPEAL. W-M Sgalt Lake county, charging Emil Winnovich, ing Is to have that liberty restored to him at abstract of a judgment is filed and docketed, Rev. St. 1898, $ 3G27, provides that a paS Khe respondent In this appeal, with the crime I the earliest possible moment When liberty the district court of the county where filed ty prosecuting a special proceeding may ba known as plaintiff, and the adverse party as dV lof murder. He was duly arrested upon a I is restored, the proceeding has accomplished and docketed cannot, on motion, vacate the fendant. Section 3303 provides that any party Warrant, and taken before said justice, who I Its purpose, and no other or further conse judgment so transferred and docketed, and to a judgment muy appeal therefrom, and that ^regularly proceeded to examine Into the I quences follow. That habeas corpus proceed strike the abstract from the record, unless it the party appealing shall be known as appef- febarge, and on the 18th day of June, 1907, I ings are civil, and the reasons why they are appears on the face ot the abstract that the lant, and the adverse party as respondent Held, that a proceeding in habeas corpus being F*fter hearing the evidence adduced thereon, I so, are well stated by Mr. Chief Justice Judgment is void. The docketing of the Judg civil, the applicant is the plaintiff and the party Ifoond that there was probable cause to be- Walte in Ex parte Tom Tong, 108 U. S. 359, ment In the office ot the c/erk of Utah county who restrains the applicant is the defendant; jlleve that the accused, Emil Winnovich, had 2 Sup. Ct 872, 27 L. Ed. 826, where he says : did not give the district court of that county and therefore an appeal by defendant m not ah. attempted appeal by the state. , .. ^ Committed the crime of murder, and entered I **The writ of habeas corpus is the remedy jurisdiction of the action in which such judg ian order .or judgment requiring the accused I which the law gives for the enforcement of ment was rendered. The docketing of the 4. APPEAL AND EBEOB—DECISIONS REVIEW*! BLE— "FINALITY OP JUDGMENT." fc«i rtn appear before the district court of Salt the civil right of personal liberty. Resort Judgment was for the purpose of creating a The test of finality for the purpose of an }Lake county, and to that end issued a mit- I to it sometimes becomes necessary, because lien upon the jeal estate of the judgment appeal is not necessarily whether the whole ^tlmus or commitment directed to the sheriff ot what is done to enforce laws for the pun debtor, and enforcing the same by execution. matter involved in the action is concluded, but whether the particular proceeding or action is gof Salt Lake county, the appellant herein, to ishment of crimes, but the judicial proceed If an execution is issued which does not fol- terminated by the judgment i ^ •safely keep said accused and bring him be ing under it is not to inquire into the crim tow the judgment as docketed, the court un [Ed. Note.—For cases in point, see Cent Dir.1 fore the district court of Salt Lake county to inal act which is complained of, but Into the doubtedly has power, on motion, to recall or vol. 2, Appeal and Error, §§ 426-443. '*M the dealt with according to law. The appel right to liberty notwithstanding the act Pro quash it. But such motion would not reach For other definitions, see Words and Phrase*! lant accordingly held the respondent In cus ceedings to enforce civil rights are civil pro vol. 3, p. 2777; vol. 8, p. 76C3.J ^ any defect in the judgment not shown upon tody In the common jail of Salt Lake county ceedings, and proceedings for the punishment the face of the record. The court, however, 5. HABEAS CORPUS—APPEAJL—DECISIONS R*-j t>y virtue of said commitment On the 26th of crimes are criminal proceedings. In the was not authorized to go behind the face of VIEWABLE—FINALITY. . *$ liiay ot June, 1907, the respondent presented In a habeas corpus proceeding, the jndg? present case the petitioner is held under the abstract and to determine whether the ment of the court which either remands or dUt-i .bis petition to George G. Armstrong, one of criminal process. The prosecution against justice rendering the judgment had jurisdic churges the petitioner is a final judgment, not the district judges of Salt Lake county, him is a criminal prosecution, but the writ tion of the person of the defendant, or to in withstanding the fact that another similar pro wherein be alleged that be was unlawfully of habeas corpus which be has obtained is quire into the merits of the cause. If the ceeding may be commenced by the petitioner if he elects to do so.i - « restrained of his liberty, and prayed that a not a proceeding in that prosecution. On the judgment rendered in the justice court is A 6. SABrs—EFFECT—STAY OF PROCEEDING. ?Jj writ of habeas corpus issue requiring appel contrary, it is a new suit brought by him to erroneous or void for want of jurisdiction, Without an express statutory provision to! lant to show cause why he detained the re enforce a civil right which he claims, as not appearing on the face of the abstract, re that effect, an appeal does not of its own fores spondent and restrained him of his liberty. against those who are holding him in custody lief therefrom must be obtained in some oth suspend the judgment in a habeas corpus pro Appellant duly produced the respondent in ceeding. i£ under the criminal process. If be tails to er manner authorized by law or equity. N court as directed by said writ, and for cause establish his right to his liberty, he may be 7. SAME—GBOUNDS FOB RELIEF. ' "}ty ot detention produced the commitment issued We are therefore of the opinion that the Where the common law is in force or un detained for trial for the offense; but, if he district court was not authorized, on motion, der statutes which are in effect merely declara as aforesaid. On the 29th day of June fol- I succeeds, he must be discharged from cus to inquire into the matters presented to it, tory of the common law, courts, on habeas cor-, lowing the petition was submitted to Said I tody. The proceeding is one Instituted by or to strike the abstract from the record. pus, may not extend the investigation beyond -district judge, sitting as a court, without ar~ I himself for his liberty, not by the government jurisdictional matters. , i.^jj .-gument The evidence adduced at the hear to punish him for his crime." In Cross v. The following cases fully support the views [Ed. Note.—For cases in point, see Cent Dig.) herein expressed and the conclusion reached vol. 25, Habeas Corpus, f 23.] ing before the justice, duly certified to by Burke, 146 U. 8. 88, 13 Sup. Ct 24, 36 L. Ed. by us: 23 Cyc. p. 893; Garlock v. Calkins, 14 him, was submitted to the court, together 896, Mr. Chief Justice Fuller, In passing up 8. SAME—REVIEW OB EVIDENCE. ,.>.*! S. D. 90, 84 N. W. 393; Btrdsey v. Harris, 68 There is no statutory authority in this state with the return of appellant as aforesaid. on the question, says: "It is well settled N. C. 92; Whitehurst v. Transportation Co., whereby a court or judge on habeas corpus may' On the 9th day of July, 1907, the court gtant- that a proceeding In habeas corpus is a civil, 109 N. C. 342, 13 S. E. 937; Lacock v. White, review the evidence adduced before a magistrate •ed the petition of respondent, upon the sole and not a criminal, proceeding." In support in support of a criminal charge for the purpose ground, as appears from the record, that °it of this, he cites Farnsworth v. Montana, 129 19 Pa. 495; Llttster v. Littster, 151 Pa. 474, of determining whether the evidence was either 25 Atl. 117. competent or sufficient to warrant the magis does not appear to the court that there la U. S. 104, 9 Sup. Ct. 253, 32 L. Ed. 616; The order of the district court canceling trate in holding the accused for trial to the' sufficient evidence in the record to warrant Kurtz v. Moffltt, 115 U. S. 487, 6 Sup. Ct. 148, district court and in committing him for that the holding of defendant" The court accord 29 L. Ed. 458, and the Tong Case, above and vacating the docketing of the abstract purpose. ...J of judgment is therefore annulled, and the ingly entered an order or judgment discharg quoted from. We desire also to call special 9. SAME. ' ,? ing the respondent from the custody of ap attention to the case of Ex rel. Durner v. docketing of the abstract restored. No costs If the accused should allege and offer to are allowed against the district judge; but prove that the magistrate did not in fact hear pellant, and restored respondent to liberty. Huegin, 110 Wis. 189, 85 N. W. 1046. In the inasmuch as the defendant, Ellen Ivers, ap any evidence in support ot the charge, and the From the order or judgment, Emery appeals. case last referred to, as In this, the sheriff accused did not waive examination, and that the A motion to dismiss the appeal is inter took the proceedings to the Supreme Court plied for the order canceling the docketing record showing the proceedings of the magis-' of the abstract, maintained and prosecuted trate is false, then the court or judge in habeas posed by respondent upon the grounds (1) for review from an order or judgment by the her motion therefor before the district court, corpus proceedings should hear the evidence in that this Is in effect an appeal by the state, lower court discharging the prisoner. That and defended the same in this court, the that regard; and, if it is found that there was and that the state has not the right to appeal case Is one of the best considered cases we no preliminary examination by the magistrate, 1n such a proceeding; (2) that, in any event, can find upon the subject, and, as it so com plaintiff is entitled to costs of this proceed the accused should be discharged. ing to be taxed against her. no appeal lies from habeas corpus proceedings pletely covers the whole ground with regard Appeal from District Court, Third District; In this state because the order or judgment to habeas corpus proceedings, we refer the McCARTY, C. J., and FRICK, J., concur. Geo. G. Armstrong, Judge. •of discharge Is not a final judgment reader to that case. In re Foye, 21 Wash. Habeas corpus by Emil Winnovich against We will first examine into the first ground 250, 57 Pac. 825, In re Baker, 21 Wash. 259, C. Frank Emery. From a judgment discharg urged why this appeal should be dismissed, 57 Pac. 827, and In re Sylvester, 21 Wash. 263, ing petitioner, defendant appeals. Reversed. namely, that an appeal in this case is an ap 57 Pac. 829, are also cases In which the WINNOVICH v. EMERY. Willard Hanson and Thos. Marioneaux, for peal by the state. This brings op the ques nature of the proceedings, the right of ap (Supreme Court of Utah. Feb. 3, 1908.) appellant. P. P. Christensen, for respondent tion whether the proceedings are civil or peal, and kindred questions are discussed. t. HABEAS CORPUS—NATURE OF PBOCEEDINO criminal. We think there is little, If any, Moreover, section 4510, Rev. St 1898, de —CIVIL OB CRIMINAL. » Mead •. Metcalf, 7 Utah. 103. 26 Pac 729; In r« room for doubt) In view of the authorities, fines a criminal action thus: "The proceed Clasby, 3 Utah, 183. 1 Pac. 852; Honerfne M. & AC. Habeas corpus proceedings are civil, and Co. v. Tallerday Steel P. ft T. Co., 80 Utah, 449, 86 that the proceedings are civil, and not crlm- | ings by which a person charged with a public not criminal. Pac. 626. WINNOVICH v. EMERY. 990 93 PACIFIC BBPORTEB. (UfaJH fUtah) 991 oe granted; and yet tt does not follow that I special statute or by constitutional provision. offense la accused and brought to trial and | and the adverse party ae respondent It alsU This argument is based upon the theory that punishment, la known as a criminal action." a judgment which does not finally estop a provides that the title of the action or pro? party to it from proceeding again in the same to permit appeals In habeas corpus proceed The section following provides that such ac ceedlng is not changed by an appeal. FronJ ings destroys the effectiveness of the remedy; tions shall be prosecuted In the name of the manner Is not, for the purpose of an appeal, all this It seems clear to us that a proceed "a final judgment This has been decided so that it may delay the party In obtaining his state of Utah as a party against the person ing in habeas corpus is civil, that the appui liberty, the very thing that by habeas corpus charged with the offense, who, the next sec often that It has become elementary. This cant is the plaintiff and the party who re-* 'court, in a later decision entitled Honerine was intended to be speedily restored to him. tion provides, shall be designated as defend strains the applicant is the defendant, and jf. & M. Co. v. Tallerday Steel P. & T. Co., It is urged that, if appeals are permitted, ant. The person charged, therefore, is pros that on appeal, the one who appeals is the SO Utah, 449, 85 Pac. 626, has so held. Mr. then the judgment of the court discharging ecuted by and in the name of the state. appellant, and the other the respondent!! justice Straup, at page 451 of 30 Utah, page the prisoner must be suspended, and the While in Borne proceedings. In their nature From this it follows that in this case no ap5 62G of 85 Pac, states the rule in this regard very purpose of the writ Is defeased. This civil, the name of the state may also be used, peal Is attempted by the state, but the ap-* tersely and correctly in the following lan argument or conclusion, to our minds, as this in habeas corpus proceedings, as we hope peal is taken and prosecuted by the sheriff^ guage: "It is the termination of the particu sumes that to follow which does not follow. to make clear, is wholly unnecessary and of C. Frank Emery, the appellant who, it was1 Without an express statutory provision to 1 lar action which marks the finality of .the no importance. claimed in the petition for a writ of habeas judgment A decision which terminates the that effect an appeal does not of its own Having thus established that a proceeding corpus, unlawfully restrained the respondent guit, or puts the case out of court without force suspend the judgment in a habeas cor in habeas corpus is civil, what is Its char of his liberty. The appeal, therefore, should an adjudication on.the merits, is neverthe pus proceeding. 21 Cyc. pp. 338-341. Even acter under our system of procedure? Is it a not be dismissed upon the first ground. r,• less a final judgment." This doctrine is sup in those states where an express right of an suit an action, or may it be classed as a Can the appeal stand as against the second ported by many cases, some of which are appeal is given by statute, the courts have special proceeding? It seems to us that ground urged? It is asserted that the de cited by Mr. Justice Straup and need not held that the taking of an appeal does not there can be no doubt that it belongs to what, cisions of this court in Mead v. Metcalfe 7 again be cited here. If this were not so, It suspend the judgment State v. Kirkpatrick, under the Code, are termed "special proceed Utah, 103, 25 Pac. 729, and In re Clasby, 8 would not be permitted to appeal from a j 54 Iowa, 373, 6 N. W. 588. ings.'* This Is also the conclusion reached Utah, 183, 1 Pac. 852, are decisive of this judgment granting an involuntary nonsuit, But this question is not Involved in this by the courts who decided the cases above question. It Is true that In Mead v. Met- because the judgment in such a case does case, and we therefore express no opinion cited, as well as the conclusion reached by calf this court held that an order or judg not estop the plaintiff from prosecuting an upon it except to suggest that such a result many other courts. The conclusion is rein ment discharging a prisoner upon habeas cor other action for the same cause of action. does not necessarily follow from the allow forced by the fact that the writ of habeas pus is not a final judgment from which an The test of finality for the purpose of an ap ance of an appeal, and therefore that it is corpus, well known to the common law, did appeal will He; and it was further held in peal, therefore, is not necessarily whether not a conclusive reason or argument against not receive the respect from the common-law both cases referred to that no appeal is per the whole matter Involved in the action Is the allowance of appeals In such proceedings. courts Its importance merited, and for that missible In any event In habeas corpus pro concluded, but whether the particular pro Nor is the further reason that a habeas cor reason It was made more effective in the ceedings. Since those cases were decided the" ceeding or action Is terminated by the judg pus proceeding may be commenced in this reign of Charles II by what Is known as the territorial government has been merged into ment. If it is, and, in order to proceed far court and thus make an appeal unnecessary "Habeas Corpus Act" Since then, to a a state government, and the right of an ap ther with regard to the same subject-matter, of much force. If this reason applies to large extent, It has been and now Is regu peal is fixed in the Constitution of the state, a new action or proceeding must be com habeas corpus proceedings, It should also ap lated by statute. 21 Cyc. 283. In modern which, so far as material here, Is found in menced, then, as a general rule, the judg ply to proceedings of mandamus, prohibition, times habeas corpus may, therefore, be con- section 9 of article 8, which provides: "From ment which ends the particular action or certiorari, and quo warranto, all of which sidered as a statutory proceeding, although it all final judgments of the district courts, proceeding is final for the purposes of an ap may be originally commenced In this court had its origin in the common law. Under there shall be a right of appeal to the Su peal, If an appeal Is permissible at all. Both We think no one would seriously contend that the statute it may well be classed as a spe preme Court The appeal shall be upon the of the Utah cases referred to have thus been for that reason no appeal should be permitted cial proceeding. If it is, who are the par record made In the court below, and under greatly weakened with regard to the doc j to this court from the judgment of the dis ties to such a proceeding? In referring to such regulations as may be provided by law." trine of finality of judgments by what is trict court entered in any one of the special our Code we find that section 3627, Rev. St. The right of appeal, therefore. Is a constitu said In the Honerine Case. Nor can the doc proceedings referred to. But let us examine 1898, provides as follows: "The party pros tional right which cannot be interfered with trine, as It is stated to be in the Honerine a little farther into the assumption that an ecuting a special proceeding may be known as by the Legislature. Under the law In force Case, be successfully assailed. We are con appeal in effect would destroy the effective the plaintiff, and the adverse party as the de when the two Utah cases above referred to> strained to hold therefore that In a habeas ness of the writ of habeas corpus under our fendant" Who prosecutes in a habeas corpus were decided the statute likewise permitted corpus proceeding the judgment of the court law as it is now in force. For this purpose, which either remands or discharges the pe proceeding? It is either the person restrain an appeal from final judgments. Iff there it must be conceded that, if a judgment of ed of his liberty, or some one In his behalf. fore, a judgment in a certain proceeding was titioner is a final judgment, notwithstanding discharge Is not final, then a judgment re He Institutes the proceeding the same as he not final under the territorial statute, it the fact that another similar proceeding may fusing a discharge and remanding the prison does any other, without leave from any one. would seem that, for the same reasons, it be commenced by the petitioner if he elects er cannot be so. What, then, would be the Against whom is it directed? Against the will not be final under the Constitution. In to do so. If this conclusion be sound, then result In view of our present law upon the person alone who deprives the applicant of view that the territorial court has directly it would seem logically to follow that, under subject of habeas corpus proceedings? This his liberty. We thus have one who com passed upon the question, and for the reason our Constitution, where the right of appeal law has been materially changed since the plains of some illegal act or acts attributed that the authorities are in hopeless conflict Is given from all final judgments, this court decisions of Mead v. Metcalf and In re Clas to another. We thus have a plaintiff. The I upon the question, we should not under or has no power to deny the right, but must per by were announced. Section 1009, Rev. St. person agains't whom the illegal acts are al- I dinary circumstances, be inclined to recon mit the exercise thereof In all cases and pro 1898, which took effect on January 1, 1898, leged Is the defendant The terms "plain sider the question, but would feel constrained ceedings. with regard to what the petition In a habeas tiff" and "defendant," therefore, are as prop to abide by the decisions of the territorial corpus proceeding must contain, in substance It Is argued that, although the language of provides that It must state the name of the er and as applicable In a habeas corpus pro Supreme Court of which this court is the a constitutional provision or a statute be ceeding as they are In any other special pro successor. The ruling, however, that a judg person who detains the petitioner and the such as would authorize or confer the right place where detained; the cause of restraint, ceeding. The plaintiff seeks to vindicate a ment In a habeas corpus proceeding Is not of appeal generally, in view that the policy legal right. The defendant opposes plain final Is based In those cases upon the ground and that It is illegal; that the legality of the of the law with regard to appeals in habeas Imprisonment has not already been adjudged tiff's claims. That both claim under a spe that such a judgment Is not res adjudlcata, corpus proceedings is opposed to the exercise cial law cannot affect the matter one way or and hence does not prevent a further pro upon a prior proceeding of the same char of the right, therefore appeals in such pro acter, and whether the application for the another. By section 3303, Rev. St. 1898, It ceeding of the same character In the same ceedings should not be permitted by the is provided that any party to a judgment writ has been before made to and refused hy court or before the same judge, or In another courts under general provisions, but only I any court or judge, and, if so, to attach a may appeal therefrom; that on appeal the court, or before another judge having juris when the right to an appeal Is given by a party appealing shall be known as appellant I diction of the subject-matter. This may alt 092 93 PACIFIC REPORTER. (Ut^ rptah) WINNOVICH r. EMERT. 993 copy of the petition and the reasons of the alms to make the writ effective, and the final iway involve, property rights, nor disturb any crate, and pass upon its sufficiency to author refusal to the petition. Section 1077 provides result to be gained by it as speedy as pogJ rights that could have beea acquired there ize the holding of the accused. The control that any court or Judge disallowing a writ sible. Upon the other band, let us assume a under, we have less hesitancy in overruling ling principles are well stated by Judge Cool- must append bis reasons therefor to the pe case where the person charged with a crime •those cases In so far as the conclusions herein ey In his excellent work on Constitutional tition, and return both to the applicant. The makes the application and is given a hear* .reached are in conflict with them. It fol Limitations (7th Ed.) p. 495, where he says: petition must be verified. The statements Ing on which the district court discharge! lows, therefore, that the motion to dismiss "In the great anxiety on the part of our Leg that the legality of the petition has not been him upon a point of law. The officer having must be denied. islatures to make the most ample provisions already adjudicated and the refusal of a him in charge may have In his custody a This brings us to the merits of the case. for speedy relief from unlawful confinement former application are both essential, and number of persons charged or contemplated It appears from the record and judgment of authority to issue the writ of habeas corpus without them the petition does not contain to be charged with the same or some other the district court that the respondent was has been conferred upon inferior judicial the necessary statements authorizing the is crime, but ail involving the same question of discharged upon the sole ground that, in the officers, who make use of It sometimes as if it suance of the writ If this be so, what is the law. He thinks the district court erred in his opinion of the court, the evidence adduced at were a writ of error, under which they might natural effect of such statements? As it decision in discharging the first applicant If the preliminary hearing was insufficient to correct the errors and irregularities of other seems to us,- it naturally must result in im there is no appeal, the judgment of the dis show probable cause to believe that respond judges and courts, whatever their relative posing restrictions upon petitioner in making trict court granting the discharge certainly Is ent was guilty of the crime charged. It is jurisdiction and dignity. Any such employ successive applications. Is it not manifest final so far as that charge is concerned, and clear, therefore that the district court under ment of the writ is an abuse. Where a party that, if a petition is presented to one court the officer of the law cannot proceed farther took to determine from the evidence wheth who is in confinement under judicial process or Judge which shows upon its face that with that or any other case involving the er there was probable cause or not Did the is brought up on habeas corpus, the court or another court or Judge of the same or higher same legal questions, unless he could have the court have the legal right to do this in a judge before whom he is returned will in grade has already passed upon the Identical law distinctly and authoritatively settled by habeas corpus proceeding? Upon this ques quire: (1) Whether the court or officer is questions involved, In nine out of ten cases the highest court If this court agrees with tion, again, the courts are not in harmony. suing the process under which he is detained the court or Judge would therefore decline the district court, no one Is or can be harmed. As a general rule, the courts hold that on had jurisdiction of the case, and has acted to issue a new writ, or, if he did, would like If, upon the other hand, it does not so agree, habeas corpus, In the absence of a statute within that jurisdiction In Issuing such pro ly follow the Judgment In the prior case un and holds that, under the law, the detention conferring the right, the courts cannot go in cess. If so, mere irregularities or errors of less something new was made to appear? was just and proper, then, again, no one is to the evidence adduced before the magis judgment In the exercise of that jurisdiction This in its practical effect, In most cases, legally injured. It needs no argument that it trate, but must confine the inquiry to ques must be disregarded on this writ, and must be would result in but one application. If no is just as important to enforce the laws tions of jurisdiction, and, if it be found that corrected either by the court issuing the pro right of appeal is given, we would thus have against criminals as it is to enforce them In the magistrate had jurisdiction of the sub cess, or on regular appellate proceedings. (2) the very thing which, in the minds of some favor of liberty and against illegal restraint ject-matter and the person of the defendant, If the process is not void for want of Juris of the courts, has been In the way of an ap It is by a strict enforcement of all the laws that the complaint stated an offense and a diction, the further inquiry will be made, peal also stand in the way of successive ap that liberty Is best protected. In view of the hearing was had upon the charge and the mit whether, by law, the case is bailable, and, if plications. But there are still other reasons. foregoing, is it not reasonably certain that timus under which the accused Is held Is reg so, bail will be taken if the party offers it; Suppose a person applies for a writ which is the exercise of the right of appeal is not ular, and that the magistrate acted within bis otherwise he will be remanded to the proper allowed, and a hearing bad upon it. Upon against the policy of the law which alms at jurisdiction, then the court may not discharge custody." The writ of habeas corpus cannot be the hearing the court refuses a discharge making the writ of habeas corpus effective? the prisoner. Some courts, under statutory made to serve the purpose of an appeal or writ of review, unless some statute specially author from the restraint, regardless of what the And it In no way retards the speedy deter provisions, have held that the court may, on izes this to be done. But, even when author cause of such restraint may be. To this the mination of the application. The argument habeas corpus, determine whether the accused ized by statute, such review must be strictly court in the case of Mead v. Metcalf and some or reason, therefore, fails that an appeal •hould be held upon the evidence, and may limited to the special proceeding to which the of the other courts make answer that the should not be allowed in such proceedings. even hear additional evidence. A distinction applicant for the writ can apply again; that If an appeal is in harmony with the ultimate statute applies. This is well illustrated by Is also made with regard to the time an ap the decisions emanating from the same courts he may even come to this court and make a object and purpose of the writ, and tends plication for the writ of habeas corpus Is new application, and he may continue this to facilitate, rather than hinder, both the In habeas corpus proceedings. In California, made. If made before an indictment is re where there is a special statute authorizing until he finds some court or judge who feels applicant and the officers of the law in es turned, the powers of the court to examine the courts on habeas corpus to determine more favorably Inclined to grant his request tablishing legal rights, is there any reason Into the evidence are greater than after in whether or not there is probable cause to com But such an applicant and all of his witnesses left why a court should resort to nice dis dictment found. 21 Cyc. pp. 324-527, where mit the accused on preliminary hearing by may be hundreds of miles distant from this tinctions and strained constructions to avoid the authorities are collected, and the differ the magistrate, the Supreme Court of Califor court, and, In view of our judicial districts appeals in such proceedings? In what we ent views of the courts stated In the notes. nia hold that the courts on habeas corpus being large, may be a great distance from have said we do not wish to be understood as The diversity of opinion is, however, more may examine into the facts to determine any other judge or court. Moreover, he may holding that an appeal lies from a mere re apparent than real. It arises out of the dif whether there- is any evidence that Justifies have presented his whole case In which the fusal to grant the writ Many courts where ferent statutory provisions applicable to ha the findings of probable cause by the magis facts are entirely undisputed, and the whole the right of appeal Is expressly given by stat beas corpus proceedings. In habeas corpus trate. People •. Smith, 1 Cal. 9. Similar question may be one of law merely. Must ute deny the right of an appeal from a mere proceedings instituted for the purpose of void holdings based upon similar statutes are be, then, In order to obtain the judgment of refusal to issue a writ But upon this ques ing a commitment Issued by an examining found in State v. Hayden, 35 Minn. 283, 28 this court upon the law, institute a new tion, like upon nearly all others In habeas magistrate many states have enacted statutes N. W. 6*59, and other cases; but the author proceeding somewhere, and produce all of corpus proceedings, the courts differ. 21 Cyc. which enlarge the powers of the judges or ity to do this comes from the statute, and, his witnesses or take their testimony by the 340, notes 31, 33. As the question is not in courts In passing upon the legality of the where .there is no statutory provision, the expensive and often unsatisfactory method of volved in this case, however, we express no commitment It Is under such statutes that courts do not extend the scope of the investi depositions, when he already has it In another opinion upon It. We think the question with courts sometimes examine Into the facts ad gation on habeas corpus so as to make the form. May not the inconvenience and costs regard to appeals in habeas corpus proceed duced before the magistrate and the • pre proceeding in effect one of review. This is thus entailed upon him result in preventing ings, in view of the provisions of law In force liminary examination held by him for the again illustrated by the decisions of the same another application upon the same state of in this state, should be treated precisely as purpose of determining whether the evidence courts, to which we have already referred. facts when by a simple appeal with a bill of such a question would be treated with re Is sufficient to warrant the holding of the ac In the following cases: State v. Kinmore, 54 exceptions containing the evidence and ruling spect to all other actions or proceedings. In cused who has been committed by the magis Minn. 135, 55 N. W. 830, 40 Am. St Rep. of the court he can obtain the Judgment of view of what we have said, and for the rea trate Into the custody of the officer. In the 309; Ex parte Miller, 82 Cal. 454. 22 Pac. this court with respect to the legality of his sons that a departure from the doctrine an absence of such special statutes, however, the 1113. Where the common law is In force," detention? This, it seems to us, Is strictly nounced in Mead v. Metcalf and In re Clasby courts on habeas corpus have not the power or under statutes which are in effect merely in furtherance of the policy of the law which will in no way interfere with, or In any to review the evidence heard by the magis- 03F-63 )94 93 PACIFIC REPORTER, (Utah Utah) JONES v. BLYTHE. 995 ieclaratory of the common law, the courts, on preliminary examinations. In those states them thceon and kept them there till they had I and that defendant has threatened and still m habeas corpus, may not extend the in the general rule is that the court or judge on eaten and destroyed much of the grass.* threatens to and will use force and violence vestigation beyond jurisdictional matters. habeas corpus may examine Into the evidence Appeal from District Court, Box Elder against plaintiff if he attempts to keep said The following cases, among a large number for the purpose only of determining whether County; W. W. Maughan, Judge. sheep from said premises." The allegations that might be cited, clearly state the rule: there Is any legal evidence which fairly tends Action by William Jones against John to support the findings and order of the mag describing the alleged trespass are substan Turner v. Conkey, 132 Ind. 248, 31 N. E. 777, Blythe. Judgment for plaintiff, and defend tially the same In both causes of action. De 17 L R. A. r,09. 32 Am. St. Rep. 251 ; State v. istrate. State •. Hayden, supra; United ant appeals. Affirmed. States v. Greene (D. C) 108 Fed. 816; In re fendant answered, and specifically denied Klnmorc, 54 Minn 135. 55 N. W. 830. 40 Am. each and every material allegation of the St. Rep. 305; Smith v. Clausmeier, 136 Ind. Henry, 13 Misc. Rep. 734, 35 N. Y. Supp. 210; Maginnls & Corn, tor appellant. J. D. Call, for respondent. complaint, and as a further defense pleaded 105, 35 N. E. 904, 43 Am. St. Rep. 311; Horn State v. Beaverstad, 12 N. D. 527, 97 N. W. 548; Ex parte Becker, 86 Cal. 402, 25 Pac. 0. an ordinance entitled "An ordinance defining er v. United States, 143 D. S. 570-578, 12 Sup. a lawful fence In Box Elder county, state of Ct 522, 36 L. Ed. 2GG; Young v. Fain. 121 Ga. The evidence in the record directly and posi McCARTY, J. This Is an appeal by the tively connects the respondent with the shoot defendant from a judgment rendered In the Utah," which ordinance, the record shows, 737, 49 S. E. 731; Ex parte Perdue, 58 Ark. was duly and regularly passed by the board 285. 24 S. W. 423; Merriman v. Morgan, 7 ing which it is claimed resulted in the death district court of Box Elder county In favor of plaintiff for damages alleged to have been I of county commissioners ot Box Elder coun Or. GO. There is no statutory authority in ot the person named In the complaint filled caused by defendant's sheep trespassing up ty, and was at the time of the alleged tres this state whereby a court or judge, on ha with the magistrate. This being so, the dis on and eating off and destroying the grass pass In full force and effect beas corpus, may review the evidence ad trict court was not authorized to pas3 upon and herbage upon certain lands of plaintiff The evidence, without conflict, shows that duced before a magistrate in support of a the competency of the evidence In a habeas situated in the northwestern part of Box plaintiff, long prior to the alleged trespass, criminal charge for the purpose of determin corpus proceeding. In view of the statutes of this state governing preliminary examina BUler county, this state. The land is de notified defendant to keep off the land In ing whether the evidence was either compe scribed In the complaint as follows: "All of question, and not to herd or bed his sheep tent or sufficient to warrant the magistrate in tions and the fundamental principles under lying proceedings in habeas corpus, we are sections 29. 30, 31, and 32, township 14 N., thereon. On this point defendant testlQed holding the accused for trial to the district of range 17 W„ Salt Lake Meridian"—and In part as follows: "I remember a conversa court and in committing him for that purpose. constrained to hold that where the record; certified to by the magistrate, affirmatively Is situated in what is known as "Cotton tion with Mr. Jones rpiaintiff and respond The proceedings had betore the magistrate in Thomas Basin." This basin has an area of ent herein]. It was about five or six years ago. this cai=e are not attacked upon jurisdiction shows what we have stated the record in this case discloses, and there Is no attack upon the about 25 or CO square miles, and is surround He came and told me the sheep were on his al grounds. There was a proper complaint ed by mountains. At the time of the alleged land, and wanted me to keep them off. which charged an offense. The magistrate truthfulness of the facts recited in the rec ord, the court Is powerless to go behind the trespass the land was partly Inclosed by a I • * • He asked me If I would keep them had jurisdiction of the subject-matter and of fence, which extended along the eastern and off. I said, 'No;' that I would not; that he the person of the accused. A hearing was judgment of the magistrate. If, however, the accused should allege and offer to prove that northern boundary thereof. A few rods was trying to control too much country; that had. Witnesses were sworn, and testified the magistrate did not In fact hear any evl south of the southern boundary there was a I did not believe he could take up the land both for the state and the accused, and their dence in support of the charge, and the ac line of fence posts extending east and west in the shape he said he was doing.* And testimony was reduced to writing. All this cused did not, with the consent of the state, along the south side of the premises. There again the defendant testified: "At the time was in compliance with the law of this state. waive an examination, and that the record was no fence along the western line or bound charged that my sheep were upon this land The commitment papers are not attacked. In showing the proceedings of the magistrate la ary of the land. The premises were covered I. had no means of knowing where the sections addition to the foregoing, the transcript of false, then the court or judge, on habeas cor with different kinds of grass, brush, and were, except by the posts and what fencing all the proceedings had before the magistrate pus proceeding, should hear the evidence In herbage, upon which cattle and other ani there was there." That the trespass was discloses that the law had been complied that regard; and, If he finds that there was mals fed and browsed. This land was used willful and intentional is shown by the tes with In every particular. This being so, the no preliminary examination or hearing by by plaintiff for grazing purposes, and during timony of defendant's witness R. C. Reid, district court who heard the habeas corpus the magistrate, the accused should be dis the summer season of each year he pastured who testified in part as follows: "I have proceeding had no authority to review the evi charged. thereon several hundred head of cattle. The been Mr. BIyrbe's (defendant's) foreman for dence heard by the magistrate for the pur complaint contains two causes of action. In two years. Mr. Rice, Mr. Bronson, and Jess pose of determining its sufficiency to support The order or judgment of the district court the first cause of action It Is alleged that the Jones came to the camp and asked me If I the judgment or order entered by him in hold discharging the respondent therefore should damage was cauced between the 1st day of Intended to run on those four sections of ing the accused to answer to the district be, and accordingly Is, reversed. June and the 11th day of July, 190ft; and Jones'. * * * I told them that I Intended court In order to justify the district court In the second cause of action It Is alleged to run upon the basin there. They asked me to so review the evidence would require that McCARTY, C. J., and STRAUP, J., concur. that the trespass complained of was com if I did not know what Jones claimed, and the writ of habeas corpus be transformed to mitted between the 1st day of June and the I said I knew he claimed Inside of the posts, a writ of review, which, as Judge Cooley well 15th day of July, 1905. The particular acts and that I was going to run in there, leaving says, would be an abuse of the writ. It is not of trespass relied on for recovery In the first a place for his horses. • • • Mr. Blythe the province of a court or judge, on habeas JONES v- BLYTHE. cause of action are alleged In the complaint told me to run in the basin there; • • * corpus, to determine whether in his judgment (Supreme Court of Utah. Jan. 30, 1908.) as follows: "That at divers times and upon that he didn't think Jones had any land In there; and that he intended to feed In there." the evidence is sufficient to warrant the bind 1. ANnr-Axs— RUNNING AT LABGE — FENC* each and every day between the dates here ing over of the accused or not. The ouly LAWS. in alleged, the defendant, his agents, and On cross-examination the witness stated that question in such a proceeding is: Is the ac Though under Rev. St. 1S98, § 20, provid employes, willfully trespassed upon said land he was on the four sections of land in ques ing that if sheep, etc., shall trespass on the by driving In and upon said land a large tion with defendant's sheep in June, July, and cused illegally restrained of his liberty? The premises of any person, except where such prem magistrate may err in his judgment both ises are not inclosed by a lawful fence in coun number of sheep, to wit, about 6.000 head, August of 1905; that on one occasion two with regard to the competency aud the suffi ties in which a fence is required by law, the and maintained camps and sheep beds, and camps or beds were maintained there contin party aggrieved may recover damages by action ciency of the evidence, but this alone does 1 herded said sheep thereon for and durlrg all I uously for six days; and that the sheep could or by distraining , as therein provided, an owner "go over in two days and take aif the feed not make the restraint illegal. It would at of sheep is not liable for damages resulting from of «afd period of time, * * * and fcs a most make it erroneous. Errors must be an unintentional trespass on uuinclosed lands in result thereof the said sheep ate, browsed, off pretty close." To the question, "You went cured by an appeal or in proceedings provid a county in which a fence law is in force, yet killed, and "destroyed the grass, verdure, un on Intentionally, did you?" he answered, "I he is liable where he intentionally drives ni? ed by law and Instituted for that purpose. derbrush, and a large number of small treos undoubtedly did, because I told the men to sheep on sach land. ake wages for labor performed. Defendants ap The foregoing Is substantially all the evi evidence, beyond a reasonable doubt, that the County; C. W. Morse, Judge. peal from the Judgment, and from an order dence shown by the record'. /The defendant I slitting of the horse's ears was such a mark- Application of J. H. Clark for a writ of denying their motion for a new trial acknowledging that be slit the ears of the | ing of an animal as might prevent the iden habeas corpus to review a conviction of colt, and there being evidence sufficient to tification thereof by the true owner; and this There was sufficient evidence to prove the grand larceny. Prom an order denying the sustain a finding by the jury that at the was certainly as liberal an Instruction in re- allegation that the plaintiff performed the writ, relator appeals. Affirmed. time he so did he knew that the animal be I gard to the character of the mark as the de- work in question at the request of the defend longed to and was the property of Thomas ! fendant was entitled to. As has been said ant Mary Springer. The plaintiff testifies D. S. Truman, for appellant M. A. Bree- Beasore, the question remained as to wheth | before, it Is the placing of any mark upon the positively to that effect, and he was corrob den, Arty. Gen., and W. R, White, Dep. Atty. er the slitting was done for the purpose of | animal, with the intent thereby to prevent orated by the witness Gil man. The answer Gen., for the State. preventing identification of the animal by identification by the owner, that is de- does not deny the request so far as the de Boasore. Upon this question we cannot say ; nounced by the statute here involved fendant Sage Is concerned. The plaintiff also B A SKIN, C. J. The petitioner appeals to that the finding of the jury is not sustained i Whether the mark adopted by the offendei testified, In effect, that the agreement was this court from an order of the district court by the evidence. Where some particular 1D- ) for that purpose is such that it will accom- that he was to receive $15 for the first month denying his application for a writ of habeas tent is a necessary element to constitute an I plish the result desired is not material. and $25 per month thereafter, and that he corpus. It appears from the allegations of act a crime, such intent may be sufficiently I What the statute really makes an offense l& forked the entire time for which he Claims, the petitioner that he and Z. Graham and shown by the circumstances surrounding the ' an attempt to prevent the identification ol except 17 days. This was sufficient to sup Albert Clark were Jointly charged by infor commission of the act. Here, in support of ! the animal by the true owner, by the placing port the verdict We cannot say, from the mation with the crime of larceny, and in a the verdict, it must be assumed that the de of a mark thereon. As in the case of an at Evidence, that the jury did not deduct the separate count they were also jointly char fendant knew that the colt was the property tempt to commit a crime, it is not essential wages for the time be was absent, nor can ged with the crime of receiving stolen prop of Beasore, and that he did not think.it was ' that the means used should In fact be capa we disturb the verdict, where the evidence erty, knowing the same to have been stolen; an estray.. Under these circumstances he, 1 ble of accomplishing the result designed i» conflicting, although the preponderance that the property alleged in the first count having taken the animal from the range ; The jury were very fully instructed that tbej inay now seem to be for the defendants. of the information to have been stolen was where it was grazing, placed a brand upon it j could not convict the defendant unless thej £The court did not err In denying the motion the same as that alleged in the second count and slit its ears. The evidence as to the | were satisfied beyond a reasonable doubt thai «>r a new trial on the ground of surprise at as having been received, and was the per placing of the brand on the animal was, of ! the defendant slit the animal's ears for tb< the testimony of Gllman concerning the con sonal property of one C. F. Johnson. The course, material and competent upon the !' purpose of preventing its identification bj tact made in his presence between the plain said Graham and the petitioner were grant question as to what the intention of the de the true owner. tiff and the defendant Springer, and of the ed separate trials, and each found guilty of fendant was In the slitting of the ears. The judgment and order are affirmed. discovery of new evidence relating thereto. grand larceny and sentenced to imprison Both things were done by the defendant at Th« new evidence was to the effect that on ment in the penitentiary, and at present are the same time, and apparently, despite de- We concur: SHAW, J.; VAN DYKE, J. •he afternoon on which Gilman said the con serving that sentence. Afterwards the said fondant's statement to the contrary, for the versation took place at the bouse of Mary Albert Clark was, upon a separate trial, same purpose. The nature of the act, the Springer she was "many miles distant*' from found guilty of the crime charged In the sec thus double marking of the animal by brand *be house. It Is not alleged that there was ond count of the information, and sentenced an aud mark, and the circumstances attending MAZOR r. SPRINGER et ai. (S. P. 8,054.) 7 witness, other than those present at the to imprisonment in the county jail and to pay a fine of $250. The petitioner appealed the doing thereof. Including statements made (Supreme Court of California, Oct 8, 1904.) trial, by whom her absence at that time hj" defendant which the jury found to be un could have been proven; nor Is her where from the judgment against him, and it was NEW TRIA.L—NEWLY OISCOVERED EVIDENCE—* affirmed by this court In State v. Clark, 74 true, were sufficient to sustain the finding TIME OF DISCOVEBT. abouts at that time stated. The only excuse that the slitting was done for the purpose of 1. In an action against two defendants tor *°r not calling the witnesses present at the Pac. 119. ^ preventing identification of the animal. work and labor, one defendant admitted that the Wal to testify to her absence was that con . Habeas corpus cannot operate as an ap That it might reasonably assist in accom work was performed at his request, and plain tacted in the affidavit of the defendant Sage, tiff and another witness testified that the other peal or writ of error. It la well settled that plishing that purpose is very

where the custody Is In pursuance of the or session, except as a co-tenant with himself, outright to us? If so, how much would you as they lived, the fact that they did so en der or judgment of a court of competent jur and alleged alfirmatively, by way of counter take? Or would you rather sign a mortgage joy it the evidence tending to show that the isdiction, such order is final until It is re claim, that he .was the owner In fee of an and still hold your interest? I don't know father acted as agent for the contributor* versed, and precludes inquiry on the writ." undivided one-third interest in the property what property is worth for there is none sold and received the deed to tbe property as 9 Enc. PI. & Pr. 10G1, and cases there cited. by virtue of a deed from Andrew English, around us for a long time. If we bought such, the conveyance by him to tbe con In Ex parte Hays. 15 Utah, 77, 47 Pac. 612, and demanded judgment accordingly. By your interest we would have to get the money tributors a year after he had taken posses this court. In an opinion delivered by Mr. way of reply plaintiff denied the tenancy in on the place for you. We have a friend who sion of the property, the recognition in writ Justice Bartch, held that "in a criminal case, common and the execution and delivery of would loan us the money provided all the ing by the plaintiff of the defendant's inter where the district court has jurisdiction of the deed from Andrew English to the defend parties signed the mortgage." At the trial est in the property after the death of the the person and cause, its judgment is bind ant, and further alleged that, if such deed the court made findings in favor of the de grantor who executed the deed in contro ing on oil the world, until reversed in a reg was ever executed, it was intended as a fendant, and entered a decree adjudging the versy, the deed itself—all these things ular way by appeal. A fortiori is this so mortgage to secure money advanced by the defendant to be the owner of an undivided strongly tend to show that the possession after the judgment has been affirmed by the defendant to the two sous of Andrew Eng one-third interest in the property and quiet of the plaintiff and her ancestors, as to the Supreme Court. Such a judgment is final, lish, who were also grantees in the deed. ing his title thereto. This appeal is from interest of the defendant in the property, and pronounces the law of the case; and the The plaintiff also pleaded the statute of lim the judgment. wag permissive, and not hostile. The proof Supreme Court will not, upon habeas corpus, itations. From the evidence it appears that Frank H. Clark, for appellant. Suther fails to show that there was ever any overt look beyond it, and review the proceedings the plaintiff is a daughter of Andrew and act, or anything said or done by those in upon which the Judgment was pronounced." Nancy English, husband and wife; that the land, Van Cott & Allison, Ben Johnson, and 8. H. Lewis, for respondent actual possession, that could be construed In the case of State v. Clark, supra, the dis defendant was married to plaintiff's sister, as a notice to the defendant that they were trict court had jurisdiction-'of the petitioner who died before thi9 litigation was com claiming or holding possession adversely to and the subject-matter of the Information menced; that the defendant and.George W. Upon a statement of the case, as above, him. The mere fact that the grantor and upon which he was convicted and sentenced. and Jesse R. English, two brothers of the BARTOH, J., delivered the opinion of the his family remained in possession after he The writ of habeas corpus applied for by the plaintiff, in 1881 concluded to advance some court. • executed the deed to the defendaut and oth petitioner was therefore properly denied. money to buy a home for their father and At the trial the defendant offered in evi ers does not render their possession ad The order denying the writ is affirmed. mother, aud thereafter the two sons and the dence the warranty deed dated September verse to the grantees. By his deed the gran defendant jointly contributed $1,325, the 26, 1882, from Andrew English to George tor passed the legal title to a one-third in BAUTCH and McCARTY, JJ., concur. amount for which the property in contro W. English, Jesse R. English, and the de terest in the property to the defendant as versy was purchased on August 2, 1881; that fendant, conveying to the grantees the prop grantee, and his covenants in the deed raised the defendant contributed $500 of the pur erty in controversy herein. To this offer the the presumption that his occupation of the chase money and the sons the remainder; plaintiff objected upon the ground that from property thereafter was under and in sub that, according to previous arrangement be September, 1881, until his death, in 1892, ENGLISH v. OPENSHAW. ordination to the legal title. To overthrow tween the parties, the property was con the grantee was in possession of the prem this presumption, the party claiming adverse (Supreme Court of Utah. Nov. 11, 1904.) veyed by warranty deed to Andrew English, ises, and thereafter until the present time ly bad the burden to establish the fact by QUIETING TITLE—AD VERSE POSSESSION—BUB- who acted as agent for the contributors; his heirs were in possession, and that such competent evidence, that an adverse posses DEN OF PBOOF—EVIDENCE—DEEDS—LETTERS. that in addition to bis contribution, the de being the case, even if he made the deed, sion continued for the statutory period of 1. Where a warranty deed in favor of defend fendant also purchased shingles and lumber, ant was regular on its face, it was admissible his title could not be disturbed by it This limitation. This is so under our statute. in an action to quiet title without evidence be and the three contributors then repaired the objection was overruled, and the action of Section 2861, Rev. St The same principle ing first introduced showing possession there house upon the premises; that it was un the court has been assigned as error. has been announced by this court Funk v. under. derstood between the parties that the pur • The appellant insists that the court erred Anderson, 22 Utah, 238, 61 Pac. 1006; Cen 2. Evidence reviewed, and held insufficient to chase was made to provide a home for the establish that plaintiff's possession of certain In admitting the deed in evidence without ter Creek Irr. Co. v. Lindsay, 21 Utah, 192, land in controversy was adverse to defendant. aged father and mother, who should occupy first requiring a showing of possession by 60 Pac. 559; Smith v. North Canyon Water 3. Under Rev. St. $ 2861, providing that in the premises as long as they lived, the de the defendant under it especially as actual Co., 16 Utah, 194, 52 Pac. 283. And such is every action for the recovery of real property fendant insisting that so long as they occu and adverse possession had been shown in the law in other jurisdictions. Schwallback or the possession thereof the person establishing pied the property they should pay the taxes a legal title shall be presumed to have been plaintiff's ancestors and herself for a period v. O., M. & St. P. R. Co., 69 Wis. 292, 34 N. jossessed thereof within the time required by thereon; that in September, 1881, the father, beyond tbe time prescribed in the statute of W. 128, 2 Am. St Rep. 740; McNeil v. Jor faw, etc., the burden is on one, olniminfl title with bis family, entered into possession of limitations. Under the facts and circum dan, 28 Kan. 7; Dawson v. Bank, 15 Mich. by adverse possession to prove the same, and the property, and continued so in possession not on the defendant to establish that he was stances disclosed by the record this conten 489; Jeffery v. Hursb, 45 Mich. 59, 7 N. W. in possession under his legal title for the statu until his death in March, 1892; that the tion is not well taken. The first point made 221; Catlin v. Decker, 38 Conn. 202; Whit tory period. plaintiff continued in possession with her refers simply to the oAier of proof, a matter ing v. Edmunds, 94 N. Y. 309. The proof in 4. Where, in an action to quiet title, plaintiff mother until the latter's death in June, 1903; which was within the sound discretion of this case is wholly inadequate to establish claimed title by adverse possession, a letter writ , that about 10 years previous to his death, on ten by her to defendant, in which plaintiff rec the court; and no abuse of discretion has title by adverse possession. We are of the ognized his interest in the land, was admissible. ! September 26, 18S2, the grantee conveyed the been shown. That a warranty deed regular opinion that the deed was properly admitted j same property to George W. and Jesse R- Appeal from District Court, Salt Lake upon its face cannot be admitted in evidence in evidence; that it was not a mortgage, but English and the defendant by warranty deed; without first showing possession under it an absolute conveyance; and that the plea County; W. C. Hall, Judge. that by virtue of this last-mentioned deed, Action by Eliza English against Joseph H. to not the law. Possession may be shown of adverse possession and of the bar by vir which was made at the request of the gran afterwards, as was done in this case. Re tue of the statute of limitations cannot avail Openshaw. From a judgment in favor of tees therein, who had furnished the money defendant, plaintiff appeals. Affirmed. ferring to the second point made—the ad the appellant for the purchase, the defendant claims an un verse possession of plaintiff and ancestors This action was brought against the de divided one-third interest in the property; and the bar of the statute—the proof seems It is also contended by the appellant that fendant to quiet plaintiff's title to certain and that in 1895 the widow of Andrew Eng wholly inadequate to render the bar com the court erred in admitting in evidence the real estate situate in Salt Lake City. The lish conveyed, by quitclaim deed, the same plete. The circumstances under which the portion of the letter written by the plaintiff complaint alleged ownership and possession property to the plaintiff. It also appears property was purchased, the purpose for to the defendant in June, 1894, but we per for many years in the plaintiff, and adverse from the evidence that in June, 1894, the Jfhich and the manner in which tbe.purchase ceive nothing to warrant this contention. claim without right in the defendant. The plaintiff, referring to the same property, *»8 made, the homeless and financial con The writing shows a recognition of the in defendant answered, denying plaintiff's pos- wrote the defendant in part as follows: ation of plaintiff's parents in their old days, terest of the defendant in the property by "We know we can't do anything without the understanding between the contributors the person who is now claiming to have % 3. Funk v. Anderson, 22 Utah. 238, 61 Pac. 1006; your consent. What do you think would be held adverse possession at the very time she Center Creek Irrigation Co. v. Lindsay, 21 Ulab, 392, ?f the purchase money that the parents 60 Pac. 559. Smith v. North Canyon Water Co., 16 | best to do? Would you sell your interest laould enjoy the proDertv as a home -as Ion* wrote the letter. The foundation for its Utah, 194, 62 Pac. 283. admission was nronerlv Inirl Tt wna fhora. 612. 47 PACIFIC REPORTER. (Utah. Utah.) JEX PARI E-HAYS. 613 ty, and his unrestricted right of disposition, Is but for us to declare what is the law, and, and cannot be questioned upon habeas corpus mitment being regular on its face, cannot be which; he contended, a corporation did not if such law is not in consonance with reason for anything except a want of jurisdiction, unlawful unless that judgment is absolutely possess.' These vjews, however, were after and justice, it is within the power of the shown^upon the face of the record or proceed ings, as ruled upon in the supreme court. null and void; and it cannot be null and wards overruled, in the case of Arthur v. legislature to make it so/ A court ought ^Syllabus by the Court.) void, when the court had general jurisdiction Bank, supra, by the high court of errors and not, for light reasons, to assume to declare of the person and subject-matter, even appeals, and the doctrine settled in that state that not to be the law which has been ac Application by Harry Hays for a writ of though it may have erred in its proceedings, that a corporation may prefer one creditor cepted and treated as the law, by courts as habeas corpus. Denied. during the trial. Irregularities and mere er over another. The Washington cases appear well as the populace, for a long period of Powers, Straup & Llppinan, for petitioner. rors in proceedings will not render a judg to sustain appellant's contention that an in time,—not even though such court may feel A. C. Bishop, Atty. Gen., and F. B. Stephens, ment an absolute nullity, although they may solvent corporation, even in the absence of impelled to inveigh against the rule as not for respondent. render It voidable, and when voidable only statutory provision on the subject, cannot founded in the soundest reason and policy. it is conclusively presumed to be valid until prefer creditors, and that its assets are a Especially is this so when such law has be BARTCH, J. The petitioner in this case reversed, and it cannot be reversed by ha trust fund for the equal benefit of its cred come the rule of practice in the business on the 1st day of April, 1896, was convicted beas corpus, because habeas corpus does not itors; but they are so manifestly against the world, and when the business interests of the of the crime of murder in the first degree, authorize the exercise of appellate jurisdic weight of authority that we must decline to state have grown up under IL and thereafter judgment of death by bang* tion; and "no inquiry," says Chancellor Kent, follow them. Other cases in other states The contention of the appellant that the as ing was pronounced against him; and since "is to be made into the legality of any pro have denied preferences when made for the signment dissolved the corporation is not ten then he has been in the custody of the sheriff cess, judgment, or decree, • * * where benefit of officers or agents of the corpora able. The law is well settled that a mere of Utah county, who justifies his detention the party is detained under the final decree tion, to give them, by reason of their posi transfer of the corporate property of a cor of the petitioner by virtue of the death war or judgment of a' competent court" 2 Kent, tions, an advantage over creditors, and where, poration to a trustee, for the purpose of pay rant and commitment issued to him by the Comm. 30. The district court being a court by statutory enactment, preferences were ing its debts, does not per se work a dissolu district court of said county. The warrant of general jurisdictionr the offense charged prohibited; but such cases cannot be con tion, and there Is nothing in the deed of as and commitment, a copy of which is attach against the prisoner was cognizable in that sidered as authority in this case, where the signment in this case which would produce ed to the petition, appear to be regular and court, and it was competent to inflict the pun assignment was made under no such objec such a result. Manufactory v. Langdon, 24 In proper form. He complains that the sen ishment provided by law for the offense of tion or prohibition. With these cases must Pick. 49; Town v. Bank, 2 Doug. 530; Bruf- tence or judgment by virtue of which he is which the prisoner was convicted; and its be classed that of the Noble Mercantile Co. fett v. Railroad Co., 25 111. 310; Pyles T. Fur in confinement is void, because, as he main judgment, not being reversed, has all the ob v. ML Pleasant Equitable Co-operative Inst., niture Co. (W. Va.) 2 S. E. 909, 921; Reich- tains, his trial was not conducted in pursu ligation which the judgment of any tribunal 12 Utah, 213, 42 Pac. 809, where the court wald v. Hotel Co., 10G 111. 439; BuellV ance of law, and that, therefore, his deten can have. properly held that the directors of an insol Buckingham, 16 Iowa, 284. tion Is illegal. The contention of the peti If the judgment be voidable only, and vent corporation, which had abandoned the We do not deem it necessary to discuss any tioner is that the jurors who sat in the trial hence obligatory, because not reversed, we objects for which it was created, could not other question presented in this case. The of the case were not drawn pursuant to any cannot look beyond it on habeas corpus. If prefer themselves, by voluntary deed of as judgment of the court below is affirmed. valid law of the state; that the act under it be absolutely void, the officer who de signment, over other creditors, whose claims which they were drawn to serve as jurors tains the prisoner and obeys the judgment is were equally meritorious. While the same MINER, J., concurs. ZANE, C. J.,*concurs was unconstitutional, and was repealed by a guilty of false imprisonment Would coun question here discussed was there argued by in the affirmance of the judgment appealed later law, .which took effect prior to the com sel for the prisoner in this case undertake to counsel, the court expressly declined to pass from, but not in all the propositions of law mencement of the trial; and that as jurors maintain the position that the officer is guilty upon it, because it was not necessary to a held in the opinion. who sat in the trial of the case were sum of false Imprisonment? Clearly, the deten decision in that case. Such cases are not in moned under the repealed law, and as the tion is authorized by the judgment and war point here. trial was conducted under the later law, an rant, and the imprisonment Is not illegal. Upon careful examination of adjudged (15 Utah, 77) error which is fatal to the judgment and sen "The habeas corpus is undoubtedly an im cases, as well as upon principle and analo tence was committed. This case was appeal mediate remedy for every illegal imprison Ex parte HAYS. gy, and in the absence of insolvent laws and ed to this court, but none of these points ment But no imprisonment is illegal where statutory restrictions, we feel ourselves (Supreme Court of Utah. Jan. 15, 1897.) were presented in that appeal, and the judg the process is a justification of the officer; bound to hold that a corporation, in this HABEAS COKPOS—JURISDICTION—CIUMIKTAX LAW— ment was affirmed. 46 Pac. 752. and process, whether by writ or warrant! is state, has the same power to prefer creditors, JUDGMENT—VALIDITT. legal whenever it is not defective in the 1. Where a prisoner convicted of the crime The important and decisive question, which by deed of assignment or otherwise, as a pri of murder is in the custody of the proper officer, confronts us at the outset, is, can this court, frame of it, and has issued, in the ordinary vate debtor has, so long as its assets have who detains him under a warrant, fair and reg In a collateral proceeding by habeas corpus, course of justice, from a court or magistrate not been taken into possession by a court of ular on its face, issued after conviction and having jurisdiction of the subject-matter, judgment by a court of record, which had juris look beyond the judgment, and determine equity, in a proper proceeding, at the in diction of the person and subject-matter, he questions which arose during the trial of the though there have been error in the proceed stance of a proper party. The rule in the will not be discharged on habeas corpus.* case, and which, if they had been presented ings previous to the issaing of it" Com. v. case of a corporation, the same as in that of 2. In a criminal case, where the district court In the record on appeal, might have resulted Lecky, 1 Watts, 66. In Ex parte Watkins, 3 an individual, is impregnable, except by leg has jurisdiction of the person and cause, it* Pet 193, the petitioner was imprisoned by judgment is binding on all the world, until re in a reversal of the judgment? We think islative enactmenL This also appears to be versed in a regular way by appeal. A fortiori not The warrant appears rair and regular virtue of a judgment of a circuit court of in harmony with the English rule, for there is this so after the judgment has been affirmed on Its face, and that the district court In the United States. The motion to discharge the power of a corporation to prefer creditors by the supreme court. Such a judgment is which the case was tried had jurisdiction of was founded on the aDegation that the in seems to be fully established, except as re final, and pronounces the law of the case; and dictment charged no offense for which the the supreme court will not, upon habeas corpus, the person and subject-matter is not, and stricted by statute. In re Wincham Ship look beyond it, and review the proceedings up cannot be successfully, questioned. This be prisoner was punishable in that court and Building, Boiler & Salt Co., 9 Ch. Div. 322; on which the judgment was pronounced. ing so, and that court being a court of rec that consequently, the proceedings were Willmott v. Celluloid Co., 34 Ch. Div. 147. 3. A prisoner's detention under a judgment, coram non judice, and totally void. A copy the commitment being regular on its face, can ord, its judgment is binding upon all the While we are not disposed to enlarge the rule not be unlawful unless the judgment is an ab world until reversed in a regular way by ap of the indictment was annexed to the peti so as to include cases not strictly within its solute nullity, and irregularities and mere er peal. A fortiori Is this so after the judg tion. The supreme court of the United terms, yet where it is applicable, as in the rors in proceedings will not render it an abso ment has been affirmed by this court. Such States declined to look into the indictment case at bar, it must be regarded and upheld lute nullity, although they may render it void to ascertain whether the circuit court hail able; and, when voidable only, it is conclusive-, a judgment is final, and pronounces the law as a law of this state no longer open to ques ly presumed to be valid until reversed, and it of the case. With what propriety, then, can misconstrued the law, maintaining that they tion. Whelher, if we were free from the au cannot be reversed by habeas corpus. had no power to look beyond the judgment - this court, by means of habeas corpus, sub thority of judicial decisions, we would enter 4. Where a case has been tried in a district- stantially reverse a judgment which the law in that case upon habeas corpus. Mr. Chief tain different views from those heroin ex court, and the judgment rendered at the trial Justice Marshall, in the course of his opin has been affirmed by the supreme court, such has placed be'yond our control? The prison pressed, is now a matter of no concern. It trial and judgment will be presumed to be legal. er's detention under the judgment, the eom- ion, said: "An imprisonment under a judg- 614 47 PACIFIC REPORTER. (Or. Or.) FIRST NAT. BANK •. LES N COUNTY NAT. BANK. 615

merit cannot be unlawful unless that judg trial has been affirmed by the supreme court, ot a national bank examiner, such examiner, { . pal; and his declarations respecting the sub ment be an absolute nullity; and it la not a such trial and judgment will be presumed at the request of the plaintiff, presented the ject-matter, if made at the same time and nullity, if the court has general jurisdiction to be legal, and cannot be questioned upon draft for payment, which, being refused, the forming a part of the transaction, will also of the subject, although It should be er habeas corpus for anything except a want of draft was duly protested; that In the regular bind him. But when the right of the agent roneous." In the case of In re Callieot, 8 jurisdiction, shown upon the face of the rec course of business notice of Its nonpayment j to act In a particular matter has ceased, or Blntchf. 89, Fed. Cas. No. 2,323, the peti order proceedings, as ruled upon In this court. could and ought to have been communicated the declarations do not accompany the a.cty tioner alleged that he was Imprisoned under Daniels v. Towers, 79 Ga. 785, 7 S. E. 120. by the defendant to the plaintiff on June or are concerning a matter not within the a sentence of the circuit court of the United We are of the opinion that the officer In this 17th, and that then and thereafter until the I scope of the agent's authority, the principal States, and charged that his Imprisonment case lawfully detained the prisoner la cus 19th Cowan was possessed of ample prop cannot be affected by them in any way. 1 was illegal, "for the reason that the law un tody. Having reached this conclusion, It is erty out of which plaintiff could have enfor Greenl. Bv. f 113; Mecbein, Ag. 115; Ander der which such sentence was imposed had unnecessary to determine whether or not the ced payment thereof if it had been notified son v. Railroad Co., 64 N. Y. 334; La Rue v. been changed and repealed before said sen act In question is unconstitutional, or was.re that the same had not been paid; but that Elevator Co. (S. D.) 54 N. W. 808. Within tence was passed." The court refused to ex- pealed. The writ is denied, and the prisoner on the last-named date he became, and has this principle the declarations of the receiv amiue the question thus presented, and de is remanded. ever since been, utterly Insolvent, and the er offered In evidence were clearly incompe nied the motion for the writ So, in Ex plaintiff has wholly lost the sum of money tent They were not only made more than parte Parks, 93 U. S. 18, Mr. Justice Brad ZANE, C. J., and MINER, J., concur. for which the draft was drawn, to its dam a month after the alleged receipt of the ley, delivering the opinion of the court, said: age In the sum of $1,000. The defendant de draft, but were in reference to a matter of "When a person Is convict or In execution by nies the imputed negligence, and sets up In which the receiver did not claim to have legal process issued by a court of competent (30 Or. ao Its answer that the draft was not received any personal knowledge, and which evident jurisdiction, no relief can be had. Of course, FIRST NAT. BANK OF PORTLAND T. by it until the 21th of June, and was imme ly happened prior to his appointment So it a superior court will Interfere if the inferior LINN COUNTY NAT. BANK. diately protested for nonpayment, and plain seems to ns that under no view of this case court had exceeded its jurisdiction, or was tiff duly notified, and this presents the con was the letter admissible in evidence to (Supreme Court of Oregon. Jan. 18, 1897.) trolling question In the case. The trial re not competent to act" So, in Ex parte Win BANK RECEIVERS — DECLARATIONS — PRESENTMENT charge the defendant with negligence. ston, 9 Nev. 71, the court, by Mr. Justice or CHECK—PRESUMPTIONS. sulting in favor of defendant, plaintiff ap It Is also claimed that the court erred la Hawley, said: "On a habeas corpus the 1. Even if a receiver of a national bank is its peals. - charging the jury that negligence of the de judgment of an Inferior court cannot be "dis agent, so that his admissions may be used ;tt As already suggested, the Important, and against it, his declarations as to receipt by it fendant bank in not making due present regarded. We can only look at the record to of a draft prior to his appointment»and of which Indeed the only, question of fact in Issue on ment ot the draft would not discharge the see whether a judgment exists, and have no he had no personal knowledge, are*not admissi the trial was the date of the receipt of the drawer from liability if he had no funds in power to say whether it is right or wrong. ble to charge it with negligence in reference draft by the defendant bank. As evidence the bank applicable to its payment The It is conclusively presumed to be right until thereto. tending to support the Issue on its part, the 2. In support of a judgment, an instrument form of the draft in question nowhere ap reversed; and, when the imprisonment Is alleged to be a sight draft, drawn by an individ plaintiff offered a letter written by the re pears in the record, and therefore it must be under process valid on its face, It will be ual on a bank, will be presumed to be an ordi ceiver of the defendant bank to the plain assumed, In favor ot the judgment of the deemed prima facie legal, and, if the peti nary bank check. tiffs attorneys on July 28, 1883, in which It court below, that it was an ordinary bank tioner fails to show a want of jurisdiction 3. The holder's laches in presenting a check for payment will not discharge the drawer if fe stated that the draft in question was taki check drawn by Cowan upon the defendant in the magistrate or court whence it em he had no funds in the bank applicable to its' en out of the post office at Albany "by Ex bank, and, considering it as such, there was anated, his body must be remanded to cus payment. aminer Jennings on his arrival, June 21st, no error In the Instruction. , tody." 2 Kent, Comm. pp. 29, 30; Church, 4. AH the evidence not being shown by the -and not received by the bank before suspen- record, it cannot be held that the verdict wag The holder's laches In presenting a check for Hab. Corp. { 363; Hurd, Hab. Corp. 8 333; not supported thereby. iion." The court refused to admit the letter payment constitutes no defense In an action Ex parte Gibson, 31 Cal. G19; Passmore Wil in evidence, and this ruling is assigned as Appeal from circuit court, Linn county, against the drawer unless he is damaged by liamson's Case, 26 Pa. St 9; Ex parte Sie- 'error. The contention for the plaintiff, as the delay, and then only to the extent of his George H. Burnett, Judge. bold, 100 U. S. 371; Ex parte Scwartz, 2 jwe understand It, is that the receiver of a loss. A check purports to be made upon a de Action by the First National Bank of Port Tex. App. 74; Ex parte Twohig, 13 Nev. 302; : national bank Is the statutory agent of the posit to meet it, and presupposes funds of the land against the Linn County National Banlti Com. v. Lecky, 26 Am. Dec. 37, 40; 9 Am. & bank, and that his admissions are competent drawer in the hands of the drawee. But, if Judgment for defendant Plaintiff appeals. Eng. Enc. Law, 224. Evidence against the association. Conceding the drawer has no such funds at the time If, in the case at bar, the jurors were not Affirmed. £-but without deciding—this to be the law, of drawing his check, or subsequently with selected and summoned in pursuance of law, J. N. Teal, for appellant J. K. Weather- jthe letter in question was clearly incompe draws them, he commits a fraud upon the and the petitioner was not satisfied with ford, for respondent tent It is at most but the narrative of a payee, and can suffer no loss or damage those drawn, he was not without a remedy; %ast event, and does not appear to have been from the holder's delay in respect to present for he could have interposed his objections BEAN, J. This is an action to recover for fmade by the receiver as a part of some ment or notice. In such case he is liable, by a challenge to the panel, as provided by a loss suffered by the plaintiff on account of ^transaction then pending within the scope of and cannot insist upon a formal demand or statute. Comp. Laws Utah 1888, §S 5004, an alleged negligent omission of duty on the jtils authority. Whenever what an agent did notice of nonpayment 3 Rand. Com. Paper, 5009. The district court was. competent to part of the defendant The substance of thei Ht,admissible In evidence against his princl- §§ 1106, 1347; 2 Daniel, Neg. Inst §f 15S7, determine whether or not the jurors had complaint Is that on the 16th day of Juni^j ¥«V it is competent to prove what he said 1596. been erroneously selected. That court had 1893, the plaintiff bank forwarded by mailj Jabout the act while doing It, because his And, finally, It is claimed that the court undoubted power to determine all the ques to the defendant bank, its regular agent and: declarations or statements, made at the time, erred in overruling plaintiffs motion for a tions of which the petitioner now complains, correspondent at Albany, Or., for collection; £&re part of the res gestae. It is for this rea new trial. Its counsel frankly concedes, and if its determination as to any one of and payment, a sight draft for $1,000, drawflj son that they are admissible at all. As stat- however, that the ruling of. the trial court them was erroneous, or if it failed to rule by one J. L. Cowan on the defendant bank^ *NT by Mr. Story, the rule Is "that, where the on a motion for a new trial based on the In on any one of them when it ought to have In favor of Fleischner, Mayer & Co., and byj pets of an agent will bind the principal, there sufficiency of the evidence, or some other done so, the petitioner had an opportunity them indorsed to the plaintiff for deposit oBj £di representations, declarations, and admis- question of fact, is not assignable error on to bring the matter up in his record on ap account; that the draft was received by thfj £8ons respecting the subject-matter will also appeal, but he seeks to make a distinction peal. If he failed to bring up his whole defendant on the day it was mailed, but ro glnd him, if made at the same time, and con- between the case stated and one where the case, It is his own misfortune. He cannot did not collect or pay the same, and ueglls] r*tltuting a part of the res gestae." 1 Story, motion is based upon the ground that the be allowed to bring up part of it, and, after gently failed to notify the plaintiff of it* S^g. 134. The agent Is the representative of verdict is against law. He contends that this court has affirmed the judgment, have noncollection or nonpayment, and no actiom ghe principal in the transaction of business from the undisputed facts and the Instruc the balance considered upon habeas corpus. was taken thereon until the 24th of Jun^j Snibraeed within his agency. Whatever, tions of the court in the case at bar the Whore a case has been tried in a district when the defendant having in the meantimel gherefore, be lawfully does in the transac plaintiff was entitled to a verdict, and that court, and the judgment rendered at the closed its doors, and passed into the hand^ tion of that business, is the act of his princi- I the only remedy for the correction of the er- 1088 PACIFIC REPORTER. VOL. 21. (Utah. fjtah.t WATSON o. COREY. 1089

In re MAUOIIAN. [indictment is designated as No. 781. The whom he had unlawfully cohabited, because II n denying him the relief prayed for, HEX- (Supreme (JourCof Utah. June 29, 18S9.) indictment was found upon the testimony of of the identity of the name in the indictments DERSON, J., speaking for the court, used the HABEAS COUPUS—FORMER CONVICTION. C. L. Lowe and Thomas Grant, November9, numbered 1,890 and 1,891, and cites Whart. following language:,* "When a person is A former conviction for unlawful cohabitation 1888. Petitioner was arraigned, and pleaded Crim. Ev. § 802, and State v. Kelsoe, 76 Mo. charged with a crime before a court having with a certain woman cannot be considered, on an not guilty. November 23. 1888, petitioner 505. These authorities go no further than to jurisdiction to determine his guilt or inno application for habeas corpus to be discharged from imprisonment on conviction of adultery with changed his plea of not guilty to that of lay down the doctrine that identity of name cence, and he claims immunity by reason of the same woman, wuere it was not pleaded as a ! guilty. January 3, 1889, petitioner was sen raises a presumption, more or less strong, a former conviction or acquittal, the burden defense. tenced by the court to pay a fine of $100, and according to circumstances, of identity of is upon him to plead it in answer to the $34 costs, and to be imprisoned in the peni person. Wharton says: " Identity of name is charge and establish it by his evidence; and On application for habeas corpus, tentiary six months, the imprisonment to not by itself, when the name is common, and if he does not do so it is waived. 1 Bish. Richards cfe Moylet for the petitioner. commence to run from said date. It el so ap when it is borne by several persons, in the Crim. Proc. § 806; 1 Whart. Crim. Law, § Ogden Biles, contra. pears that on the 23d day of November, 1888, same circle of society, sufficient to sustain a 538 et seq.; Ex parte Kaufman. 73 Mo. 588; the petitioner was indicted in said district conclusion of identity of person. The infer In re Bogart, 2 Sawy. 396; State v. Webb, ANDERSON, J. The petitioner alleges that court for the crime of unlawful cohabitation ence, however, rises in strength, with cir 74 Mo. 333. The question of a former con he is a prisoner in the custody of Frank H. J with Barbara Maughan, Elizabeth Maughan, cumstances indicating the improbability of viction was a matter of defense, and was a Dyer, United States marshal for the terri Margaret Maughan, Mary Maughan, Rachael there being two persons of the same name at question for the determination of the court tory of Utah, in the penitentiary of said ter Woodward, and Euphira Maughan, by living the same place, at the same time, and when having jurisdiction to try the charge. It in ritory for a criminal offense against the laws and cohabiting with said women as his wives there was no proof that there is any other volves an issue of fact, the identity of the of of the United States, to-wit, adultery; that from the 15th day of January, 1886. to the person bearing the name. Names, therefore, fenses charged, the existence and priority of such confinement is by virtue of a judgment, 123d day of November, 1888. This indictment with other circumstances, are facts from'[th e record relied upon, and on habeas corpus warrant, and the proceedings of record, in is designated as No. 1.890, and was found which identity can be presumed." . this court cannot try such an issue." The cluding three indictments against him, hia upon the testimony of the petitioner alone, In the case of State v. Kelsoe, supra, the j rule here laid down is decisive of this case. arraignment thereon, and pleas thereto, re | who voluntarily appeared before the grand defendant was indicted for burglary under ii and we see no reason to change or modify it. spectively, and convictions thereon upon his jury at his own request, and gave testimony. the name of Charles Kelsoe, alias McCarty. Whatever merit there may be in the peti pleas of guilty thereto. A copy of the record On the same day he appeared in open court, At the trial he testified in his own behalf, tioner's case is a proper subject for executive is in each case attached to the petition. He was arraigned, and pleaded guilty to the in and for the purposes of affecting his cred consideration, but this court can afford him alleges that under the judgment in two ot the dictment. January 3, 1889, petitioner was ibility the state introduced the record of the no relief. The prayer of the petitioner is cases he has been imprisoned in the peniten sentenced by the court to pay a fine of $100, conviction of Charles Kelsoe, alias McCarty, denied, and an order will be entered accord- tiary for more than six months, and has paid and $31 costs, and be imprisoned in the peni of grand larceny, and this was claimed to be j taglv- the fines and costs adjudged against him tentiary six months, the imprisonment to run error; but the court held that identity of such therein; that he is now imprisoned under the f rom'said date, it further appears that peti a name was sufficient to raise a presumption ZANE, O. J., and HENDERSON, J., concur. other one of the judgments rendered against tioner was also indicted in said court on the of identity of person, and was therefore him, and that such imprisonment is illegal, 23d day of November, 1888, for the crime of proper evidence to go to the jury. But in for the reason that the court had no jurisdic adultery alleged to have been committed this case even the presumption of identity of WATSON V. COBEY. tion to pass judgment against him in said on the 1st day of October, 1887, with one person from identity of name does not appear case; that the two judgments which he has HAYS V. SAME. Rachael Woodward; that the said indictment from the indictment, nor any part of the rec 1 satisfied by suffering the imprisonment, and was designated as No. 1,891, and was found ord in the adultery case, but only appears in | (Supreme Court of TJtalu Jan. 25,1889.) paying the Ones and costs adjudged against MUNICIPAL CORPORATIONS—INCORPORATION A*I> on the testimony of Joseph Howell; that on the record of another case, and hence cannot j 1 him therein, were both for the crime of un GOVERNMENT —STATUTES. said November *23d petitioner was arraigned, be considered in determining the question 1. Laws Utah 1888, c. 48. is entitled "An act pro lawful cohabitation, and that he is now iru-l and pleaded guilty to the indictment, and on now presented. In none of the cases cited viding for the incorporation of cities.w The first prisoned under the judgment of the court! the 3d day of January, 1889, was sentenced by counsel for petitioner, nor in any we have ] five sections of article 1 provide for the manner rendered against him on the indictment tor! by the court to be imprisoned in the peniten been able to find, has it been held that on in which unincorporated territory may incorporate adultery; that the offense is the same offense I under the act. Sections 0-9 provide for the mode tiary two years and six months, and pay the habeas corpus facts not appearing in some of incorporation of cities under the act Sections for which he has suffered punishment under Icost s of prosecution, amounting to $29. part of the record of the case could be con ! 10—13 are general. Sections 14,15, classify exist the other indictments, and that the Kachael From the foregoing it will be seen that the sidered. It was the duty of petitioner, if he ing municipalities into two classes. Sections 16- Woodward mentioned in the indictment for 19 relate to municipal government, and provide petitioner was regularly .ndicted, convicted, relied for defense upon the fact of a former | for the mode of election of city officers. A subse adultery, and in one of the indictments for j and sentenced for the crime of adultery, upon conviction, to have pleaded it in the district quent section of another article provides that cer unlawful cohabitation, is one and the same his plea of guilty made in open court. There court, instead of pleading it for the first time tain sections "are hereby made applicable to all person, and that he is being punished twice is no illegality appearing anywhere in the on habeas corpus in this court. In the case incorporated cities now organized in this terri for the same offense; that the court had no tory, ** and sections lft-19 of article 1 are not men record of the case. It does not appear in of In re Barton, ante, 998, (decided at this tioned, though a section of another article, which jurisdiction to render judgment against him which of the three cases the plea of guilty term,) the same principle was involved. In re-enacts the same principle as those sections, on his plea of guilty to the indictment of was first entered, nor in which case judg that case Barton was indicted for unlawful i with a proviso that it shall not interfere with any adultery, and that the same is void; and he I existing mode of elections, is included. Article 1, ment was first rendered. Tt does not appear cohabitation with one Mary Beesley, and also I S ft, provides that when the common council call prays to be discharged from imprisonment that the Rachael Woodward with whom peti for adultery committed with Mary Beesley | an election to determine whether the city shall bo thereunder. A writ of habeas corpus was tioner committed adultery on the 1st day ot during the time covered by the first indict reincorporated under the act, they shall give no heretofore issued in the case, and the peti October, 1887, was the same Rachael Wood ment. Both indictmentB were found by the tice of the class to which the city will belong if tioner produced in court by the United States | reincorporated. Held\ that sections 16-19, art. 1, ward with whom be unlawfully cohabited same grand jury, upon the same evidence, did not apply to an incorporated city, whose marshal. From the exhibits attached to the from the 15th day of January, 1886, to No and both indictments were presented at the I charter provided for the manner of electing its of- petition, it appears that on the 9th day of vember 23d, 1888. If such was the fact, and same time. Barton pleaded guilty to both i fleers, existing at the taking effect of the act, until January, 18B6, the petitioner was indicted it became reincorporated under section 6, and it it had been properly pleaded and proved on indictments on the same day. The court was immaterial that its common council had taken in the district court of the First judicial dis the trial, it would have constituted a good suspended sentence in the case for unlawful steps to ascertain its class, under section 14. trict for the crime of unlawful cohabitation, defense to the indictment for adultery; but cohabitation, and sentenced him to imprison 1 2. In Utah territory the fact that a statute has alleged to have been committed between Au this court cannot, on habeas corpus, hear ment on the charge of adultery, and he pre no enacting clause does not per seinvalidate it. gust 1, 1884, and December 10, 1885, by liv evidence nor determine the questions from sented his petition to this court, asking to Appeals from district court. First district. ing and cohabiting during said period of anything outside of the record in this case. be discharged on habeas corpus from im tune with Barbara Maughan, Elizabeth Hull, The opinion of the lower court was as fol Counsel for petitioner insists that the rec prisonment, because the district court had! lows: Erdner Maughan, Maggie Nibley, Mary Hale ords attached to his petition show that the no jurisdiction to sentence him in the adul-! "This is a hearing upon a motion to quash Maughan, Kachael AVoodward Maughan. and adultery was committed with one of the same tery case, after his conviction on the plea of Francis Nibley Maughan, as his wives. This I wouK-n, to-wit, Rachael Woodward, with. guilty to the charge of unlawful cohabitation. Publication delayed by failure to receive copy. v.21p.no.!7—m ADDENDUM I 832 Colo. 833 PACIFIC REPORTER, 2d SERIES PEOPLE v. ROBINSON C^ fi«Q Clt.-M3F.2d .32 (ColcApp. 1992) ^^ »33 district court properly rejected plaintiffs drove by the gas station, a clerk in the 1. Criminal Law *>998(14) 7. Judgment ^nm) challenges to the validity of the initial in station pointed towards the Corsica. Thus, Although appeal duplicating previously Successful attack on use of conviction the dispatch call was irrefutably linked to a vestigatory stop. d,sm.ssed appea may be dismissed, there is in one proceeding does not prevent r^ person who, by her non-verbal communica Moreover, it is undisputed that, following th at defend ant affi at tions, emphatically gave further weight to the initial stop, the information obtained by STZTSS , f K ™ **- *•*» of the issue of thva'lSty of £ the officer's suspicion that the driver of the the arresting officer provided him with white vehicle was driving in an intoxicated probable cause for plaintiff's DUI arrest denied. Rules Crim.Proc., Rule^ * IZT^^l^ **"**' **• state. Based on that information and his and that plaintiff thereafter submitted to a 2. Statutes e=>181(l), 188 perceptions, the arresting officer stopped breath test, which showed an alcohol con 8. Habeas Corpus «=>203 plaintiffs vehicle, the white Corsica, short In interpreting statutory provisions, centration of .257 grams of alcohol per 210 Writs of habeas corpus, of which Rule ly thereafter on suspicion of DUI, although liters of breath. Accordingly, the hearing court must seek to discern intent of the 35 motion to vacate is a modern equivalent, he acknowledged that he did not observe officer properly revoked plaintiffs driver's General Assembly, looking first to lan were traditionally considered collateral pro any other driving violations. license pursuant to § 42-2-122.1, and the guage of statute itself, then giving effect ceedings. Rules Crim.Proc., Rule 35. Even absent other driving violations, an district court properly upheld the revoca to statutory terms in accordance with their investigatory stop of a motor vehicle is tion. commonly accepted meaning. 9. Statutes 998(14) General Assembly is presumed cogni reasonable suspicion that the driver is com zant of judicial precedent in a particular mitting or has committed a drunk driving METZGER and RULAND, JJ, concur. Intent of the General Assembly in cre area when it enacts legislation in that area. offense. See § 42-4-1202.1, C.R.S. (1984 ating time limitations on collateral attacks Repl.Vol. 17) (expressly authorizing such on convictions is to avoid litigation of stale 10. Statutes *»181(1) claims and to avoid frustration of statutory investigatory stops). See also Johnson v. (o | KtV NUMIM VTSTlHl Court must construe statute to effectu Motor Vehicle Division, 38 Colo.App. 230, provisions directed at repeat, prior, and ha ate legislative intent. 556 P.2d 488 (1976) (rejecting argument bitual offenders. West's C.R.S.A. § 16-5- that any traffic violation separate and dis 402(2). 11. Criminal Law *=»998(14) tinct from drunk driving offense was nec 4. Criminal Law <*=*998(14) Provision of Rule 35 that one who is essary to invoke the requirements of the aggrieved and claims a right to be released The PEOPLE of the State of Colorado, former implied consent law). Term "collaterally attacked" as used in or to have judgment set aside may file a Plaintiff-Appellee, [3] In determining the validity of an statute setting time limits on collateral at motion for that relief "at any time" does investigatory stop, the first inquiry is v. tacks on convictions includes Rule 35(c) mo not take precedence over statute of limita whether there were specific and articulable Edgar Burton ROBINSON, tions to vacate. West's C.R.S.A. § 16-5- tions on collateral attacks on convictions. facts known to the police officer which, Defendant-Appellant 402; Rules Crim.Proc., Rule 35(c). West's C.R.S.A. § 16-5-402; Rules Crim. taken together with rational inferences See publication Words and Phrases Proc., Rule 35(c). No. 90CA1566. for other judicial constructions and from these facts, created a reasonable sus definitions. picion of criminal activity so as to justify Colorado Court of Appeals, 12. Constitutional Law «=»55 the intrusion into the individual's personal Div. V. 5. Criminal Law «=>998(1, 21) If legislative act is based in public poli cy rather than an attempt to regulate day- security. People v. Garcia, 789 P.2d 190 Feb. 27, 1992. Successful Rule 35 attack results in (Colo.1990); People v. Mascarenas, 726 to-day procedural operations of court, it As Modified on Denial of Rehearing conviction at issue being vacated and the does not usurp Supreme Court's rule mak P.2d 644 (Colo. 1986). validity of that conviction may not be relit- ing authority. We conclude that the investigatory stop March 26, 1992. igated in any subsequent proceeding, al in this case was justified under the reason Certiorari Granted Aug. 17, 1992. though in some circumstances the prosecu 13. Constitutional Law *=»48(3) able suspicion standard. Here, the arrest tion may refile the original charge and Cross-Petition for Certiorari Statute must be construed so as to ing officer's observations, including the Denied Aug. 17, 1992. defendant may face reconviction. Rules clerk's communications to him almost im Crim.Proc., Rule 35. avoid constitutional infirmities. mediately after the report must have been 14. Habeas Corpus «=>443, 503 Defendant appealed from order of the 5. Judgment *=»518, 713(1) given, were sufficient to provide him with a Only claims cognizable in constitution reasonable suspicion that the driver of the District Court, Larimer County, John-David Attack on use of conviction is an at Sullivan, J., which dismissed motion to va ally guaranteed state habeas corpus pro white vehicle was driving under the influ tempt to avoid, defeat, or evade judgment ceeding are that the sentence was beyond ence, and the investigatory stop was there cate conviction. The Court of Appeals, >r to deny its force and effect in some Davidson, J., held that statute of limita jurisdictional limits or that the conviction fore justified. See § 42-4-1202.1; People ncidental proceeding; successful attack on was invalid because the court lacked juris v. Contreras, 780 P.2d 552 (Colo.1989); tions on collateral attacks on convictions ise bars only the use of the prior convic- applied to Rule 35 motion to vacate. diction over the subject matter of the de People v. Melgosa, 753 P.2d 221 (Colo. ion in that incidental proceeding, and the fendant West's C.R.S.A. Const. Art. 2, 1988). Thus, the hearing officer and the Affirmed. onviction itself remains. §21. 834 Colo. 833 PACIFIC REPORTER, 2d SERIES PEOPLE v. ROBINSON Colo. 835 Cite M 833 P.2d 832 (Colo.App. 1992) 15. Criminal Law e»998(14) received a two-year deferred sentence. In was subject to the requirements of § 16-5- tion may not be relitigated in any subse Statute of limitations on collateral at 1990, defendant filed a Crim. P. 35(c) mo 402. While this statement was dictum, we quent proceeding, though in some circum tacks on convictions does not limit collat tion to vacate the conviction. view it as highly instructive. stances the prosecution may refile the orig eral attacks on jurisdictional grounds. In its opposition brief, the prosecution Additionally, in People v. Fagerholm, inal charge, and defendant could face re West's C.R.S.A. § 16-5-402; West's argued that the motion was untimely pur conviction. See People v. Keenan, 185 C.R.S.A. Const. Art. 2, § 21. 768 P.2d 689 (Colo. 1989), the supreme court suant to § 16-5-402, C.R.S. (1986 Repl.Vol. upheld the constitutionality of § 16-5-402 Colo. 317, 524 P.2d 604 (1974). 8A). That statute provides that a person 16. Constitutional Law «»55 in the context of a Crim. P. 35 motion. In [6,7] In contrast, an attack on the use may not "collaterally attack the validity" of Habeas Corpus 912 People v. Brack, 796 P.2d 49 (Colo.App. of the conviction is an attempt to avoid, a conviction unless the attack is begun General Assembly may impose statu 1990), this court also upheld the denial of a defeat, or evade judgment or to deny its within various time spans ranging from six tory conditions on state applications for Crim. P. 35 motion based upon § 16-5-402, months for petty offenses to no limit for force and effect in some incidental proceed habeas corpus. West's C.R.S.A. Const although, in those cases, the applicability ing. Brennan v. Grover, 158 Colo. 66, 404 class 1 felonies. The period applicable to of § 16-5-402 to such proceedings was not Art. 2, § 21. first degree assault is three years. P.2d 544 (1965), cert denied, 383 U.S. 926, challenged. 86 S.Ct 929, 15 L.Ed.2d 845 (1966). A 17. Criminal Law «=»998(14) The trial court agreed that the motion Defendant was not excused from fail successful attack on use bars only the use was untimely, and it was dismissed without A. ure to attack conviction within the statu of the prior conviction in that incidental a hearing. On appeal, defendant contends proceeding; the conviction itself remains. tory time period on the grounds that he had that the dismissal was in error because 12,3] In interpreting particular statu no present need to attack the conviction tory provisions, this court must seek to Watkins v. People, 655 P.2d 834 (Colo. § 16-5-402 does not apply to attacks on 1982). The successful attack on use does until it was used in habitual offender pro discern the intent of the General Assembly, convictions filed pursuant to Crim. P. 35. not prevent relitigation of the issue of the ceeding, and defendant was nonetheless re looking first to the language of the statute We disagree. validity of the subject conviction in a subse quired to attack the conviction before the itself, and giving effect to the statutory quent proceeding, or even in a Crim. P. 35 statutory deadline of July 1, 1989. West's terms in accordance with their commonly I. attack of the same conviction. Wright v. C.R.S.A. § 16-5-402. accepted meaning. Tkiret v. Kautzky, 792 Ill As a threshold matter, we address People, 690 P.2d 1257 (Colo.1984). the People's argument that defendant's ap P.2d 801 (Colo. 1990). The intent of the 18. Constitutional Law *»250.2(5) peal should be dismissed because he may General Assembly in creating time limita [8] However, although avenues for col Criminal Law «=>998(14) have litigated the merits of this Crim. P. tions on collateral attacks, as stated in lateral attacks do differ, an attack on the Application to defendant of statute of 35(c) claim in another proceeding and has § 16-5-402(2), C.R.S. (1986 Repl.Vol. 8A), conviction itself has long been considered a limitations on collateral attacks on convic failed to allege specifically that his claims is to avoid litigation of stale claims and to collateral attack, whether through Crim. P. tions did not deny him equal protection of are not duplicative. Although an appeal avoid frustration of the statutory provi 35 or its federal counterpart, 28 U.S.C. the law despite claim that he was barred by duplicating an appeal previously denied sions directed at repeat, prior, and habitual § 2255 (1988). See Bales v. People, 713 offenders. lack of present need from timely filing his may be dismissed, People v. Holmes, 819 P.2d 1280 (Colo.1986) ("a defendant may postconviction challenge. U.S.C.A. Const. P.2d 541 (Colo.App. 1991), there is no re 14] Defendant argues that "collateral collaterally attack a prior conviction by ei Amend. 14; West's C.R.S.A. § 16-5-402. quirement that a defendant affirmatively attack" refers only to an attack on the use ther filing a Crim. P. 35(c) motion in the assert that the relief sought has not been of the conviction, such as a motion to sup sentencing court or by filing a proper mo tion to prohibit the prosecution from using Gale A. Norton, Atty. Gen., Raymond T. previously denied, and we find no indication press an habitual offender count, but not to Slaughter, Chief Deputy Atty. Gen., Timo in this record that any such duplicative a "direct" attack on a conviction pursuant evidence of a prior conviction in a pending thy M. Tymkovich, Sol. Gen., Clement P. relief has been considered or denied on to Crim. P. 35. On the other hand, the criminal prosecution"); U.S. v. Hayman, Engle, Asst. Atty. Gen., Denver, for plain appeal. People argue that, in the criminal context, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 tiff-appellee. there is no distinction between collateral (1952); U.S. v. Frady, 456 U.S. 152, 102 II. attacks and other post-conviction relief and S.Ct. 1584, 71 L.Ed.2d 816 (1982); U.S. v. David F. Vela, Colorado State Public De Whether motions filed under Crim. P. 35 they urge this court to construe the term Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 fender, Patrick J. Mulligan, Deputy State are included in the provisions of § 16-5- "collaterally attack" as used in § 16-5-402 L.Ed.2d 805 (1979). See also People v. Public Defender, Denver, for defendant- to include attacks under Crim. P. 35. Al Fagerholm, supra, (Vollack, J., dissenting) appellant. 402 is a matter of first impression in Colo rado. Our supreme court specifically de though we find significant distinction be ("[defendant] collaterally attacked both pri clined to reach this issue in People v. Ger tween collateral attacks and other types of or convictions under Crim. P. 35"). Also, Opinion by Judge DAVIDSON. many, 674 P.2d 345 (Colo. 1983), because it post-conviction relief, we nevertheless hold writs of habeas corpus, of which Crim. P. Defendant, Edgar Burton Robinson, ap held that the then current version of the that "collaterally attack" as used in § 16- 35 is a modern equivalent, were traditional peals from the order of the trial court statute was unconstitutional. However, in 5-402 necessarily includes relief sought ly considered collateral proceedings. See dismissing his Crim. P. 35(c) motion as un Moland v. People, 757 P.2d 137 (Colo.1988), pursuant to Crim. P. 35. U.S. v. Hayman, supra. timely. We affirm. the court specifically stated in a footnote 15] A successful Crim. P. 35 attack re [9] The General Assembly is presumed In 1977, defendant entered a plea of that a defendant's right to obtain post sults in the conviction at issue being vacat cognizant of judicial precedent in a particu guilty to first degree sexual assault. He conviction review pursuant to Crim. P. 35 ed. Thereafter, the validity of that convic lar area when it enacts legislation in that 836 Colo. 833 PACIFIC REPORTER, 2d SERIES MARTINEZ v. SHAPLAND Colo. 837 Cite M 833 V2A S37 (ColoApp- 1992) area. Rauachenberger v. Radetsky, 745 claims and also preventing frustration of only those collateral attacks previously tory deadlines be filed by July 1, 1989. P.2d 640 (Colo.1987). We therefore may statutes aimed at repeat, prior, and habit made available by legislative and judicial People v. Stephens is dispositive. Accord assume that it was fully aware of the ac ual offenders. Section 16-5-402 had such expansion of the scope of postconviction ingly, defendant here has failed to estab cepted uses of the term "collaterally at a severe impact upon the ability of prior relief beyond that which is constitutionally lish a lack of present need. tack" as used in the lexicon of criminal law. offenders to attack a conviction that an mandated. inclusion of a grace period after its effec IV. [10] Moreover, a common sense reading tive date was necessary to render it consti [16] Third, the General Assembly may of the plain language of the statute dic tutional. People v. Fagerholm, supra. impose statutory conditions on state appli [18] For the same reason, we reject de tates the conclusion that the General As Thus, while it also had an incidental effect cations for habeas corpus. See People ex fendant's contention that he has been de sembly intended not a technical definition upon procedure, the statute is primarily an rel. Wyse v. District Court, 180 Colo. 88, nied equal protection of the law. Defen of "collateral," but its commonly accepted expression of public policy. See ABA, 503 P.2d 154 (1972); Stilley v. Tinsley, dant's argument is premised on the as meaning within a criminal law context. Standards for Criminal Justice, Standard supra; see also § 13-45-101, C.R.S. (1987 sumption that he was barred by a lack of "Statutes must be construed so as to effec 22-2.4 (2d ed. 1982). See also Chase Secu Repl.Vol. 6A) and § 18-1-410, C.R.S. (1986 present need from timely filing his postcon tuate their intent and beneficial purposes, rities Corp. v. Donaldson, 325 U.S. 304, 65 Repl.Vol. 8B). And, similar state statutes viction challenge. Specifically, he contends not to defeat them." Colorado State S.Ct. 1137, 89 L.Ed. 1628 (1945) (statutes of of limitations on collateral attacks have that habitual criminal charges filed against Board of Medical Examiners v. Saddoris, limitation "represent a public policy about been upheld as constitutional. See Davis v. a defendant in June 1989 could be attacked, 825 P.2d 39 (Colo.1992). The purpose of the privilege to litigate"). Accordingly, State, 443 N.W.2d 707 (Iowa 1989) (state but not those filed after the July 1 dead the statute is explicit—to prevent defen here, the statute controls over the rule. legislature may attach reasonable time line. Since we have determined that defen dants from thwarting the effect of repeat See People v. Hollis, 670 P.2d 441 (Colo. limitations to the exercise of state constitu dant was not barred by lack of present offender statutes and to end rampant relit App.1983). tional rights). See also United States v. need, we also reject his equal protection igation of stale claims. The scope of the Randolph, 262 F.2d 10 (7th Cir.1958), cert argument. statute is sweeping ("no person shall collat C. denied, 359 U.S. 1004, 79 S.Ct 1143, 3 To the extent that we have jurisdiction of erally attack the validity of a [prior convic [13] A statute must be construed so as L.Ed.2d 1032 (1959) (upholds Illinois' five- the issues raised, the order is affirmed. tion] unless — "), and reading the statute to avoid constitutional infirmities. People year statute of limitations for post-convic as defendant urges would limit it drastical v. Washburn, 197 Colo. 419, 593 P.2d 962 tion relief). PLANK and ROTHENBERG, JJ., ly. To the contrary, we must construe a (1979). Defendant argues that the applica Having considered this jurisprudence, we concur. statute to effectuate the legislative intent, tion of Crim. P. 35 motions to § 16-5-402 determine that § lfr-5-402 must be con Martinez v. Continental Enterprises, 730 will render the statute unconstitutional be strued to include Crim. P. 35 motions with P.2d 308 (Colo.1986), and the intent here is cause the statute will conflict with Colo. in its terms. However, insofar as defen IMVNUMUR SYSTEM! unmistakable. Cf. People v. Fagerholm, Const, art. II, § 21, which prohibits any dant's argument raises a claim of facial supra; Moland v. People, supra. suspension of the writ of habeas corpus. unconstitutionality, we do not have jurisdic First, we note that although our supreme tion to decide that issue. Section 13-4- B. court did not specifically address the state 102(l)(b), C.R.S. (1987 RepLVol. 6A). [11] Defendant argues, however, that suspension clause, the court upheld the constitutionality of § 16-5-402 in the con III. Christine C. MARTINEZ, even if § 16-5-402 applies to Crim. P. 35 Plaintiff-Appellant, motions, Crim. P. 35(c)(3) provides that one text of a Crim. P. 35 motion in People v. [17] Defendant also contends that the who is aggrieved and claims a right to be Fagerholm, supra. trial court erred in finding that he was not v. released or to have a judgment set aside [14,15] Secondly, we do not necessarily excused for his failure to attack the convic Paillette Ann SHAPLAND, may file a motion for such relief at any agree that the collateral attacks foreclosed tion within the statutory time period. We Defendant-Appellee. time, and, citing People v. McKenna, 196 disagree. by § 16-5-402 are those guaranteed by the No. 90CA2142. Colo. 367, 585 P.2d 275 (1978), he contends state suspension clause. The only claims Citing Moland v. People, supra, defen that such procedural rule takes precedence cognizable in a constitutionally guaranteed dant argues that he had no "present need" Colorado Court of Appeals, over a procedural statute. We disagree. state habeas corpus proceeding are these: to attack the conviction until its use in Div. III. (1) the sentence was beyond jurisdictional habitual offender proceedings and that, [12] If a legislative act is based in pub Feb. 27, 1992. limits, or (2) the conviction was invalid be therefore, his neglect was excusable. lic policy rather than as an attempt to cause the court lacked jurisdiction over the However, in People v. Stephens (Colo.App. Rehearing Denied April 2, 1992. regulate the day-to-day procedural opera subject matter or the defendant. See Stil- No. 90CA1641, February 27, 1992), we held Certiorari Denied Aug. 10, 1992. tion of the court, it does not usurp the ley v. Tinsley, 153 Colo. 66, 385 P.2d 677 that notwithstanding any present need re supreme court's rule making authority. (1963). The statute does not limit collateral quirements as set forth in Moland v. Peo People v. McKenna, supra. attacks made on those grounds. See ple, § 16-5-402, as construed in People v. In negligence action, plaintiff sought Here, the statute's stated goals include §§ 16-5-402(2) (a) and (b), C.R.S. (1986 Fagerholm, supra, requires that all collat damages for injuries arising from automo preventing difficulties in litigating stale Repl.Vol. 8B). Instead, the statute limits eral attacks otherwise barred by the statu- bile accident. The District Court of the 60 Tenn. 833 SOUTH WESTERN REPORTER, 2d SERIES POTTS v. STATE Tenn. 61 CIUM833 S.W.2d 60 (Tenn. 1992) APPENDIX—Continued 5. Criminal Law <*»998(14) lenging the validity of prior guilty pleas (If your answer is "No," do not answer Francis W. POTTS, Petitioner-Appellant, Trial Courts should not treat true ha that he had entered in 1982 and 1983 to charges of DUI. The motion also request any further questions. Sign this form v. beas petitions filed outside post-conviction and return it to the court.) statute of limitations as post-conviction pe ed a consolidation of the petition with the STATE of Tennessee, Respondent- pending DUI case. The state agreed to 3. Did the plaintiffs own negligence ac titions. T.C.A. § 40-30-102. Appellee. consolidate the post-conviction action with count for 60 percent or more of the 6. Habeas Corpus *=>603 the guilty plea submission, but argued that total negligence that proximately Supreme Court of Tennessee, Challenges to void convictions and ex at Jackson. the post-conviction challenge to the prior caused his/her injuries or damages? pired terms of imprisonment survive be guilty pleas was time-barred by the provi Answer: (Yes or No) June 8, 1992. yond time prescribed in post-conviction sions of T.C.A. § 40-30-102. The trial (If your answer is "Yes," do not an statute of limitations, and Great Writ can judge agreed with the state and dismissed swer any any further questions. Sign not be defeated by conversion to post-con the post-conviction petition. The court Petitioner appealed from dismissal of viction proceedings and subsequent dismis this form and return it to the court.) his petition for habeas corpus relief in the then adjudged Potts guilty of a third-of sal due to statutory time bar. T.C.A. § 40- fense DUI and sentenced him accordingly. 4. What is the total amount of plain Criminal Court, Shelby County, Joseph B. 30-102. tiffs damages, determined without ref Dailey, J. The Supreme Court, Daughtrey, This appeal followed, pursuant to the juris erence to the amount of plaintiffs neg J., held that three-year statute of limita 7. Habeas Corpus «=>285, 603 dictional provision in T.C.A. § 16-4-108. ligence? tions on filing of post-conviction petitions is Habeas corpus has no statutory time In 1986, the General Assembly enacted Amount in dollars: $ not unconstitutional suspension of writ of limitations; even after post-conviction peti T.C.A. § 40-30-102. Pursuant to that pro habeas corpus. tion is dismissed as untimely, prisoner may 5. Using 100 percent as the total com vision: assert in petition for writ of habeas corpus bined negligence which proximately Affirmed. A prisoner in custody under sentence that his conviction is void or that he is caused the injuries or damages to the of a court of this state must petition for being wrongfully confined beyond his term post-conviction relief under this chapter plaintiff, what are the percentages of 1. Criminal Law *=>998(14) such negligence to be allocated to the of imprisonment. within three (3) years of the date of the plaintiff and defendant? Routine challenge to pre-1986 convic final action of the highest state appellate tion has to have been lodged no later than Brett Stein, Memphis, for petitioner-ap court to which an appeal is taken or Plaintiff % June 30, 1989. T.C.A. § 40-30-102. Defendant % pellant. consideration of such petition shall be 2. Criminal Law e»978 barred. (Total must equal 100%) Charles W. Burson, Atty. Gen. and Re Habeas Corpus «=>912 porter, Kathy Principe, Asst. Atty. Gen., By its terms, the new provision was to take Statute imposing three-year limitations Nashville, for respondent-appellee. effect on July 1, 1986. Signature of Foreman period on filing of post-conviction petitions [1] However, prior to the enactment of OPINION ON PETITION TO REHEAR is not unconstitutional suspension of habe OPINION § 40-30-102, there had been no limitation Plaintiff has filed a respectful and as corpus; the statute of limitations is inap DAUGHTREY, Justice. on the filing of post-conviction petitions in thoughtful Petition for Rehearing request plicable to habeas corpus proceedings, be Tennessee. Consequently, in order to The appellant, Francis W. Potts, appeals ing argument on (1) the advisability of re cause the two avenues of collateral attack avoid due process problems, the courts of directly to this Court from the dismissal of taining joint and several liability in certain are theoretically and statutorily distinct. this state ruled that the new statute of his petition for post-conviction relief. Potts limited circumstances, and (2) the Opinion's Const. Art. 1, § 15; T.C.A. §§ 29-21-101 et limitations would be given prospective ap asks us to declare that the three-year stat treatment of nonparty tort-feasors. Be seq., 40-30-101 et seq., 40-30-105. plication only. See, e.g., State v. Masucci, ute of limitations on the filing of post cause such further guidance should await 764 S.W.2d 90, 91 (Tenn.Crim.App.1988); 3. Habeas Corpus *=»224, 445 conviction petitions constitutes an unconsti State v. St. John, 751 S.W.2d 453, 454 an appropriate controversy, the petition is Writ of habeas corpus will issue only tutional suspension of the writ of habeas (Tenn.Crim.App. 1988); Abston v. State, accordingly denied. in case of void judgment or to free prisoner corpus, in violation of the provisions of 749 S.W.2d 487, 488 (Tenn.Crim.App.1988). held in custody after his term of imprison Article I, § 15 of the Tennessee Constitu Thus, a routine challenge to a pre-1986 ment has expired. Const. Art. 1, § 15; tion. For the reasons set out below, we REID, C.J., and O'BRIEN, conviction has to have been lodged no later T.C.A. §§ 29-21-101 et seq., 40-30-101 et find no merit to this contention and affirm DAUGHTREY and ANDERSON, JJ., than June 30, 1989. Masucci, 754 S.W.2d seq., 40-30-105. the judgment of the trial court. concur. at 91. 4. Habeas Corpus «=»203, 206 On August 24, 1990, Potts was indicted Unlike post-conviction petition, purpose for a third offense DUI. On the date set [2] The appellant's petition challenging of habeas corpus petition is to contest void for trial, he entered a guilty plea to the his pre-1986 DUI convictions was filed af and not merely voidable judgments; peti basic DUI charge but took issue with the ter June 30, 1989, and, on the basis of case tioner cannot collaterally attack facially charge that he was a third-time offender. authority set out above, the trial court held valid conviction in habeas corpus proceed Potts filed a "Motion in the Nature of a that the post-conviction petition was barred ing. Petition for Post-Conviction Relief," chal- by the statute of limitations. On appeal, 833 S W 2d-3 62 Tenn. 833 SOUTH WESTERN REPORTER, 2d SERIES JONES v. HELENA TRUCK LINES, INC. Tenn. 63 Cite M 833 S.WJd 62 (Tenn. 1992) Potts contests the constitutionality of habeas corpus, except to the extent that and (2) causation was adequately estab testimony of treating physician, which cor T.C.A. § 40-30-102. He argues that in im habeas petitions are properly treated by lished. roborated employee's testimony. posing a statute of limitations on post-con 1 courts as post-conviction petitions. Habe Reversed and remanded. viction proceedings, the legislature has un as corpus has no statutory time limitation. 7. Workers' Compensation *=»861 constitutionally suspended the writ of habe Even after a post-conviction petition is dis When determining on remand proper as corpus. Potts relies in this regard on missed as untimely, a prisoner may assert 1. Workers' Compensation «=»1217 amount of workers' compensation benefits Article I, § 15 of the Tennessee Constitu in a petition for a writ of habeas corpus Employee must give required notice to to award employee for permanent partial tion, which provides that "the privilege of that his conviction is void or that he is employer that he has sustained work-relat disability to body as a whole, court should the writ of Habeas Corpus shall not be being wrongfully confined beyond his term ed injury before workers' compensation consider that employee possessed few suspended, unless when in case of rebellion of imprisonment. benefits can be collected. T.C.A. § 50-6- transferable skills and that at time of trial, or invasion, the General Assembly shall 201. employee, who was formerly a truck driv declare the public safety requires it." We hold that the provisions of T.C.A. er, was working as a security guard and § 40-30-102 do not unconstitutionally sus We find the appellant's contention mis 2. Workers* Compensation <*=>1221 earning approximately 35% of his salary pend the writ of habeas corpus in Tennes Employee's notice of injury to employ before being injured. placed. The statute of limitations on the see. Because the appellant's constitutional filing of post-conviction petitions is inappli er for workers' compensation purposes challenge is without merit, we affirm the must be calculated reasonably to convey 8. Workers' Compensation «=>1733 cable to habeas corpus proceedings, be judgment of the trial court. When trial court in workers' compensa cause the two avenues of collateral attack message that employee has suffered injury tion suit has heard all proof and intends to are theoretically and statutorily distinct. arising out of and in course of his employ REID, C.J., and DROWOTA, O'BRIEN ment. T.C.A. § 50-6-201. rule in employer's favor on some ground [3,4] The post-conviction process, set and ANDERSON, JJ., concur. authorized by statute or by case law, court out in T.C.A. §§ 40-30-101 et seq., provides 3. Workers' Compensation *=>1221, 1676 should also make contingent findings con for challenges to convictions that are al Employee reasonably conveyed to his cerning extent to which employee would leged to be either void or voidable because (O iKirNUMMtSYSTEM> employer that he had been involved in otherwise be entitled to recover. of the abridgement of constitutional rights. work-related accident and thereby suffered T.C.A. § 40-30-105. In contrast, it is well injury arising out of and in course of his settled in this state that the writ of habeas employment, as was required for receipt of Ira M. Thomas, Memphis, for appellant corpus, codified at T.C.A. §§ 29-21-101 et workers' compensation benefits; testimony Richard D. Click, Memphis, for appellees. 8eq., will issue only in the case of a void by employee's supervisor that employee judgment or to free a prisoner held in never told him of work-related injury was J.T. JONES, Jr., Appellant, OPINION custody after his term of imprisonment has as easily attributable to supervisor's over expired. State ex rel. Hall v. Meadows, v. sight as it was to employee's failure to DAUGHTREY, Justice. 215 Tenn. 668, 389 S.W.2d 256, 259 (1965). HELENA TRUCK LINES, INC., and communicate both nature and cause of his This workers' compensation appeal re Unlike the post-conviction petition, the pur Liberty Mutual Insurance injury. T.C.A. § 50-6-201. quires us to review the sufficiency of the pose of a habeas corpus petition is to con Company, Appellees. 4. Workers' Compensation *»1245 employee's notice that he was injured on test void and not merely voidable judg the job. The trial court dismissed the ac Supreme Court of Tennessee, Court could not impute co-worker's ments. See State ex rel. Newsom v. tion, ruling that the employee knew that he at Jackson. knowledge of employee's work-related inju Henderson, 221 Tenn. 24, 424 S.W.2d 186, had sustained a work-related injury but 189 (1968). A petitioner cannot collaterally ry to employer for purposes of determining June 8, 1992. whether employer was given proper notice failed fully to communicate this knowledge attack a facially valid conviction in a habe to his employer. For reasons set forth as corpus proceeding. State ex rel. Hoi- of employee's work-related injury for work ers' compensation purposes. T.C.A. § 50- below, we disagree with the trial court's brook v. Bomar, 211 Tenn. 243, 364 S.W.2d conclusion and find that the employee is 887, 888 (1963). Employee appealed from an order of 6-201. the Shelby County Court, Kay S. Robilio, entitled to recovery. Because the trial 15-7] The three-year statute of limita J., which rendered judgment for employer 5. Workers' Compensation 1252 court made no findings beyond the ruling tions on the filing of post-conviction peti in workers' compensation suit. The Su Although lack of prejudice, by itself, is on notice, it is necessary to remand the tions in no way affects the writ of habeas preme Court, Daughtrey, J., held that: (1) insufficient to excuse employee's failure to case for a determination of the award to corpus. The provisions of § 40-30-102 are employee gave employer adequate notice give employer notice of work-related inju the employee. ry, such matter is germane to determina inapplicable to petitions for the writ of that he had suffered work-related injury, We begin with a brief summation of the tion of whether employer was given ade facts pertinent to the issue of notice. The I. T.C.A. § 40-30-108 instructs trial courts to post-conviction petitions. Challenges to void quate notice for workers' compensation treat habeas petitions as post-conviction peti convictions and expired terms of imprisonment employee, J.T. Jones, was a long-haul truck purposes. T.C.A. § 50-6-201. tions "when the relief and procedure authorized survive beyond the time prescribed in § 40-30- driver for the employer, Helena Truck by [the Post-Conviction Procedure Act] appear 102, and the Great Writ cannot be defeated by adequate and appropriate." Trial courts should conversion to post-convictions proceedings pur 6. Workers' Compensation *»1492 Lines, Inc. On two separate occasions in not, however, treat true habeas petitions filed suant to § 40-30-108 and subsequent dismissal Causation was adequately established May and June of 1989, Jones slipped and outside the § 40-30-102 statute of limitations as because of the § 40-30-102 time bar. in workers' compensation proceeding by fell while disembarking from his truck.